Im Bundesgerichtsurteil BGer 4A_83/2022 vom 22. August 2022 hielt das Bundesgericht fest, dass der Mieter eben doch nicht immer recht hat.

In the Federal Supreme Court ruling BGer 4A_83/2022 of 22 August 2022, the Federal Supreme Court held that the tenant is not always right after all.

The tenant moved into a flat in Murten on 1 December 2007 at a net rent of CHF 1,154. Despite the obligation to use a form – in the cantons of Basel– Stadt, Geneva, Lucerne, Neuchâtel, Vaud, Zug and Zurich, the initial rent must be notified on a separate form in the event of a housing shortage – the tenant was not handed the official form. Failure to use the form or to give reasons for a rent increase on it will result in the agreed rent being null and void. The tenant may bring an action for a judicial determination of the initial rent and for the refund of the amount paid in excess. Abuse of rights remains reserved, but is to be assumed restrictively.

In the case at hand, after negotiations on a rent reduction years after the beginning of the lease had not proceeded to the tenant’s satisfaction, the tenant invoked the formal invalidity of the agreed initial rent and demanded from the court the determination of an initial rent of CHF 772 as well as the repayment of approximately CHF 45,000. The courts considered that the tenant was a trained lawyer with several years of experience in tenancy law. He had known the legal situation at least in broad outline. During 13 years he fulfilled the tenancy agreement voluntarily and without error. Under these circumstances, the court considered the invocation of the formal defect to be abusive, which meant that the initial rent was left unchanged at CHF 1,154 and no refund was owed. The tenant is not always right after all, even though there are very high hurdles to overcome!