Tenancy law: defects at the end of the lease
At the end of the tenancy, the landlord must notify defects within 2–3 days. Failure to do so bars claims under tenancy law, but a claim based on tortious liability (Art. 41 et seq. CO) remains available.
Defects at the end of the tenancy: what must the landlord do?
When a lease ends and the tenant returns the apartment or commercial premises, the landlord is obliged to inspect the condition of the property carefully. If defects are found for which the tenant is responsible, the landlord must notify the tenant without delay. This is required by Art. 267a CO.
The notification deadline: 2–3 days
Case law and practice have established a very tight deadline. The defect notification must be made within 2–3 days of discovery. The defect must be described with sufficient precision; a generic communication is not enough. If the landlord fails to meet this deadline, the tenant is released from all liability for those defects. The exception concerns hidden defects, i.e. those that could not have been detected through an ordinary inspection at the time of return.
This rule is designed to protect the tenant, whom tenancy law regards as the contractually weaker party. The legislature intended to prevent landlords from raising defect claims weeks or months after the handback.
A common mistake by landlords
In the practice of Studio Legale e Notarile Haab, Avv. Hugo Haab and Avv. Roberto Haab regularly encounter the same situation: the landlord discovers damage caused by the tenant but allows too much time to pass before giving formal notice. Sometimes the landlord is entirely unaware of Art. 267a CO, or underestimates how short the deadline is. The result is that the tenancy law claim becomes unenforceable.
The alternative route: tortious liability
Even where the landlord has lost the right to act under the tenancy provisions, a second option remains open. Art. 41 et seq. CO govern extra-contractual liability and permit a claim for damages to property. This route covers several scenarios: damage caused directly by the tenant (Art. 41 CO), damage caused by the tenant's animal (Art. 56 CO), or damage caused by the tenant's auxiliary persons (Art. 55 CO).
As confirmed by legal scholarship (D. Balmer in AJP 5/2019), the tenancy law provisions and the rules on tortious liability are alternatively applicable. In practice, Art. 41 et seq. CO serve as a kind of fallback for the landlord who has missed the timely notification.
Why the tenancy law route remains preferable
That said, the claim based on tenancy law (Art. 267 and Art. 267a CO) offers the landlord more favourable conditions, both with regard to the recoverable damages and the burden of proof. The limitation periods also work in the landlord's favour. A claim under Art. 41 et seq. CO, by contrast, requires the landlord to prove all the conditions of tortious liability within a limitation period of 3 years from knowledge of the damage (Art. 60 CO).
Contact us
If you are a landlord and have discovered defects in the property after the tenant's departure, it is important to act quickly. Studio Legale e Notarile Haab in Lugano, with Avv. Hugo Haab and Avv. Roberto Haab, can assist you in assessing the situation and identifying the most effective strategy. Contact us for a consultation.
For a personal consultation: info@haablegal.ch | +41 91 913 30 70
