Interessante Präzisierung der Rechtsprechung!

In its ruling 4A_183/2020 of May 6 2021, the Federal Supreme Court clarified its case law on the question of which party (landlord or tenant) must prove in a dispute whether or not the initial rent for an apartment in an old building is abusive in comparison with rents customary in the locality or district.

The ruling is based on the following facts: In 2017, a woman had rented a 2-room apartment in a house built in 1933 with a monthly net rent of Fr. 1,060. The landlady informed the tenant of the new rent as well as the rent owed by the previous tenant. The previous rent had been Fr. 738 net. The landlady filed an action with the Zurich rental court requesting a ruling that the initial net rent of Fr. 1,060 per month be declared as not abusive. The rental court decided that the rent of Fr. 1,060 was abusive and set the threshold for non-abusive rent at Fr. 855. The landlord's appeal against this decision was dismissed by the High Court.

In its considerations, the Federal Supreme Court states that pursuant to Art. 270 para. 1 CO, the tenant may challenge the initial rent and demand its reduction if the rent was significantly increased compared to the previous rent. In the case of old properties, the question of abusive rent is assessed on the basis of the criterion of local or neighborhood comparison (para 3.1.1). This is done either on the basis of official statistics or on the basis of five comparable properties. Official statistics were not available in the present case, which is why only the method with the five comparative apartments remained (para  3.1.2, 3.1.3).

The Federal Supreme Court further emphasizes in its decision that in case of a challenge of the initial rent, the burden of proof for the abusiveness of the rent lies with the tenant (para 3.2.1). However, the clarified federal court case law assumes a presumption of an abusive rent if there has been a massive increase of the rent. For the Federal Supreme Court, a massive increase of the rent is given if the increase is significantly higher than 10%. The supreme court further concludes that in the present case the presumption of abusiveness is given, since there has been an increase of 44% (para 3.3.2). However, it is possible for the landlord to shake the correctness of the presumption by proving circumstantial evidence (para 4.2).

Regarding reasonable doubt about the correctness of the presumption, the Federal Supreme Court then states that in this case, for example, unofficial statistics can be consulted by the landlord or the landlord lists three or four comparable properties which could raise reasonable doubt about the presumption. A private expert opinion could also be suitable for this purpose. However, the supreme court states with regard to the standard of proof that it is not as strict here as in the case of proof of local and neighborhood custom, as it is only a matter of raising justified doubts about the correctness of the presumption of abusiveness (para 4.3.1).

Another important indication against the presumption of an abusive initial rent is a long duration of the previous tenancy spaninng 15 to 20 years (para 4.3.2).

If a court comes to the conclusion that the landlord has succeeded in raising reasonable doubts about the presumption, the presumption thereby ceases to apply. This in turn leads to the tenant having to prove the abusiveness of the initial rent with official statistics or with the help of five comparable properties. The presumption of unfairness applies in favor of the tenant if the landlord does not succeed in raising reasonable doubts (para 4.3.3).

The present judgment is on the one hand a clarification of the case law but on the other hand also a double-edged sword according to the motto "one man's victory is another man's loss". The ruling shows that the burden of proof is unequally distributed, since the tenants have to provide absolute proof with regard to the abusiveness of the rent in relation to the rents in the neighborhood. For the landlord, on the other hand, it is sufficient if he can prove by means of partial evidence that the rent was not abusive in a previous long-term tenancy. It will become clear in the future how much this case law will further strengthen the position of landlords, as it will be difficult for tenants to prove the rents in the neighborhood.

Facts at a glance:

  • In the event of a challenge to the initial rent, the tenant bears the burden of proving that the rent was abusive.
  • There is a presumption of an abusive rent if there has been a massive increase in the rent. For this, there must be a rent increase of significantly more than 10%.
  • A long-lasting relationship with the previous tenant can be said to have lasted from 15 to 20 years.
  • By proving circumstantial evidence, the landlord can shake the correctness of the presumption and the tenant must in turn prove the abusive nature of the rent.

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