Can I take legal action against my landlord?

Can I take legal action against my landlord?

"In your article last Monday, you explained how to take action against an odour nuisance neighbour. I too suffer from this kind of nuisance but I don't have the means to take legal action. Can't I get my local authority to take action?

Ben, Geneva

That's right: a tenant who has been the victim of excessive interference from his neighbour may choose to complain to his landlord rather than take proceedings himself against the person who is abusing his right of ownership to his detriment or unlawfully disturbing his enjoyment of his home. The tenant can thus take action against the landlord by invoking the prerogatives offered by the rules on defects in the leased property during the lease, in accordance with art. 259a et seq. of the Code of Obligations.

Under the terms of article 256 of the Swiss Code of Obligations, the lessor is obliged to deliver the property in a condition suitable for the use for which it was leased, and then to maintain it in that condition. During the term of the lease, the lessor is therefore liable for any damage not attributable to the lessee. If such defects occur and the tenant is not required to remedy them at his own expense, or if the tenant is prevented from using the property in accordance with the contract, he may demand that the landlord restore the property to its original condition, reduce the rent proportionately and pay damages.

The concept of a defect includes anything that excludes, restricts or hinders the agreed use of the rented property, in particular the deprivation of the possibility of making proper use of the premises due to the behaviour of a neighbour. Tenants can therefore expect their landlords to take the necessary steps to remedy a defect within their sphere of influence, either by making the appropriate repairs or by taking action themselves to put an end to the nuisance against the person causing it, in accordance with the rules of neighbourhood law set out in art. 679 et seq. of the Civil Code, as explained in these columns last week.

In the specific case of the unpleasant odours complained of by the reader from Chêne-Bougeries, if these are due to a defect in the ventilation system attributable to the landlord (who, by hypothesis, owns the two flats concerned), the latter may be required to restore the property to a condition that complies with the agreed use. If the odours are due to inadequate fittings in the neighbouring building that does not belong to the landlord, the aggrieved tenant may request that the landlord take proceedings against the neighbouring building, so that the ventilation system in question is adapted or relocated in order to avoid the unpleasant odours.

Finally, it should be emphasised that the rights arising from the lease are not subsidiary to actions based on rights of neighbours, which means that the aggrieved tenant can perfectly well decide to take action on both fronts in parallel.