On 27 March 2020, the Federal Council informed about the new measures in the area of rent and lease. The following relaxations in tenancy law apply with immediate effect:

"The measures adopted in tenancy law have answered some urgent questions, but the most important issue of entitlement to a rent reduction is still unresolved."

- RA Rebecca Isenegger

Removals are permitted subject to compliance with the recommendations of the FOPH.

The payment period due to rent arrears was extended from 30 to 90 days (Art. 257d para. 1 CO) if a tenant falls into arrears due to the measure ordered by the authorities, whereby this extension of the period applies to rent and ancillary costs due between 13 March and 31 May 2020.
The short notice period for furnished rooms and parking spaces was extended from two weeks to 30 days (Art. 266e CO).

The fact that the Federal Council has recognised the problem and is tackling measures in tenancy law is basically positive. In particular, the extended payment period from 30 to 90 days for rent arrears will be able to take some pressure off entrepreneurs. However, the measures taken appear insufficient overall to solve the pressing problems in tenancy law.

It is worth mentioning the pitfall that the extended payment period for rent arrears to 90 days does not refer to the notice period, which is still 30 days (Art. 257d para. 2 CO). This means that after the expiry of the payment period of 90 days, the landlord can still terminate the contract within a very short period of time. The rent continues to be owed. Uncertainty is also caused by the fact that the tenant only gets the extended payment period if it is due to the measures ordered by the authorities. It is largely unclear what standard of proof is required here. It is not clear whether a simple written or even oral statement of reasons to the landlord will suffice. In view of the landlord's possibility to terminate the lease in case of payment arrears, this standard of proof must not be neglected under any circumstances. At the latest in the case of a challenge of the termination, it will be advantageous if the reason for the payment arrears can be substantiated in writing. The tenant is therefore advised to comply with the written form without exception.

The most pressing problem, namely the question of whether the closure of the business ordered by the authorities can be regarded as a rental defect within the meaning of Art. 258 CO and entitle the tenants to a reduction, was also not clarified. It therefore remains to be seen whether a solution will emerge in this matter.

The regulation can be found here: COVID-19 Regulation Rent and Lease.

This article was written by Rebecca Isenegger, lawyer.

For further information on contract law, please contact Arife Asipi directly.