The Federal Supreme Court has ruled on a number of disputes relating to tenancy law in 2023. The following update on current decisions in tenancy law deals with index-linked tenancy agreements, procedural concerns relating to the jurisdiction of the commercial courts in matters of tenancy law and legal abuse in the case of outdated forms.
Rent adjustment for index-linked rental agreements
Judgement 4A_252/2023 of the Federal Supreme Court of 24 October 2023 addresses the adjustment of the rent at the end of an index-linked rental agreement, which is justified by the change in the mortgage reference interest rate.
The Federal Supreme Court concludes that, in the case of an index-linked contract with a term of 5 years, the notice period must be observed if a rent adjustment is sought at the end of the contract due to the change in the mortgage reference interest rate compared to the interest rate at the start of the index. Otherwise, it is assumed that there is agreement regarding the previous rent. The relevant date for the mortgage reference interest rate is therefore the date of cancellation in compliance with the notice period.
To summarise, tenants and landlords can only invoke the interest rate at the start of the index if the adjustment is claimed in due time.
Commercial court: Subject matter jurisdiction in matters of tenancy law?
Judgement 4A_263/2023 of 11 September 2023 sets out the Federal Supreme Court’s distinction between commercial courts and ordinary courts when it comes to matters of tenancy law. In the following case, the parties are in dispute about the consequences of the termination of a tenancy of a premises, whereby the difference in rent between the termination of the tenancy and the company moving out is claimed.
The Federal Supreme Court refers to Art. 6 para. 1 ZPO and states that the cantons designate a specialised court, which is the only cantonal instance with jurisdiction for commercial court matters. As the following dispute concerns a business premises, this dispute can be subsumed under Art. 6 para. 2 lit. a ZPO under “business activity”. However, Art. 243 para. 2 lit. c ZPO must be observed, as this states that the commercial courts have subject matter jurisdiction, irrespective of the amount in dispute, in disputes relating to tenancies of residential and commercial premises and agricultural leases, insofar as these concern the deposit of rent and leasehold interest, protection against abusive rent and leasehold interest, protection against dismissal or a request for extension.
The applicability of the protection against dismissal pursuant to Art. 243 para. 2 lit. c ZPO is now to be examined by the Federal Supreme Court.
The Federal Supreme Court ruled that commercial courts have jurisdiction to judge financial tenancy law matters if they are asserted after the termination of the tenancy and jurisdiction under commercial law is generally also given. The simplified procedure pursuant to Art. 243 para. 2 lit. c only applies to financial claims where the subject matter of the proceedings itself includes the deposit of rent and leasehold interest, protection against abusive rent and leasehold interest or the contestation of the termination or extension of the tenancy or lease.
Outdated forms must be reprimanded immediately!
The ruling 4A_409/2022 of the Federal Supreme Court published on 19 September 2023 deals with the question of how to deal with outdated forms for rent increases in accordance with Art. 269d para. 1 CO, as Art. 269d para. 1 CO allows the landlord to increase the rent at any time to the next possible termination date if he notifies the tenant of the rent increase at least ten days before the start of the notice period on a form approved by the canton.
In this case, the plaintiffs are appealing to the Federal Supreme Court, claiming that the landlord used the wrong forms. The form was dated at a time when a different conciliation authority was responsible, and accordingly the correct conciliation authority was not indicated on the form. The request was submitted to the correct conciliation authority within the deadline, but it was not until the appeal proceedings that an action for nullity was brought.
The Federal Supreme Court found that if a tenant, despite being aware of the shortcomings of the form, does not complain immediately or at least in the proceedings at first instance, this must be classified as an abuse of rights under Art. 2 para. 2 of the Swiss Civil Code, as the claimants would have waited until the appeal before asserting the invalidity of the form.
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