Rent reduction: not always hot!

Rent reduction: not always hot!

At the beginning of the year, I reported a fault with the oven in my rented flat to my landlord. Despite my repeated phone calls, no-one intervened to repair it. As a result, I couldn't heat my food for several months. Fed up with this negligent attitude, I terminated the lease at the end of August. I'd like to ask for a reduction in the rent, but a friend has told me that it's no longer possible to do so after the end of the contract. Is he right?

A. Geneva

As you know, a tenant can claim a reduction in rent during the term of the lease if a defect in the leased property substantially reduces its value in use.

Under art. 259d of the Swiss Code of Obligations (CO), the tenant has the right to request a proportional reduction in rent if the rented property has a defect that the landlord has not repaired within a reasonable period of time. A defective oven, as an essential piece of equipment in a kitchen, can indeed be considered a defect affecting the enjoyment of the flat, which entitles the tenant to request a reduction in rent for as long as the defect persists.

In a 2016 ruling, the Federal Court considered the question of how long the tenant had to act in order to claim the rent reduction, as the letter of the law did not provide a precise answer on this point.

Our High Court held that one of the purposes of rent reduction is to rebalance the contractual relationship following a defect in the leased property. The rent reduction mechanism is not intended to put any pressure on the landlord to repair the defect in the work, but rather to compensate the tenant for the damage caused by the defect. The rent reduction is thus oriented towards the past - and not the future - so that the Federal Supreme Court accepts it with retroactive effect, even when it is demanded after the end of the contract.

It goes without saying, however, that the landlord must have been notified of the defect, and must have been aware of it and not repaired it, before a rent reduction can be taken into account. It is therefore not possible to apply (retrospectively) for a rent reduction for a period during which the landlord was unaware of the problems justifying the reduction. For obvious evidentiary reasons, we strongly recommend that you do not simply make telephone calls, but point out the defects in writing.

While the right to claim a reduction in rent after the end of the lease is now recognised by case law, it should not be forgotten that it is subject to the statutory limitation periods. In matters of tenancy law, legal action must be taken within five years of the day on which the landlord became aware of the defect, pursuant to art. 128 CO, if no amicable settlement can be reached between the parties.