Lease Law: Tenant Liability for the Condition of the Leased Property upon Return

Returning the leased property: what is the tenant actually liable for?

When a lease ends and the time comes to hand back the flat (or any other leased property), the landlord is obliged to inspect the condition of the premises carefully and to notify the tenant without delay of any defects for which the tenant may be held responsible. This is established by Art. 267a CO.

So far, so straightforward. In practice, however, something quite different happens: many tenants end up paying costs they do not actually owe, because they are unaware of the limits of their liability. Hugo Haab, Attorney-at-Law, and Roberto Haab, Attorney-at-Law, of Studio Legale e Notarile Haab in Lugano, deal with these situations on a regular basis and know how widespread the confusion on this subject is.

Use in conformity with the contract: the true benchmark

Under Art. 267(1) CO, the tenant must return the property in the condition resulting from use in conformity with the contract. Not "as new". Not "as it was at the start". The condition deemed conforming depends on the intended purpose of the premises: residential, office, or industrial. The standard varies according to the agreed use.

This means that the landlord cannot demand the property be returned in perfect condition. The rent paid by the tenant serves precisely to compensate for the natural depreciation of the property over time.

Normal wear and tear: borne by the landlord

The law is clear on one fundamental point: normal wear and tear is entirely borne by the landlord. The landlord cannot charge the tenant a single franc for this type of deterioration.

What falls under normal wear and tear in a residential flat? Walls that yellow over time, marks left by furniture or pictures, a reasonable number of small holes in the walls, slight scratches and cracks, minor marks on parquet flooring, the natural deterioration of wallpaper. All of these are effects of everyday use that the landlord must accept.

The tenant is, however, liable for damage that goes beyond this level: deterioration caused by the tenant, by persons living with the tenant, or by the tenant's pets, as well as the costs of cleaning and minor repairs (typically up to CHF 200).

The most common case: repainting the walls

In practice, the most frequent dispute concerns the cost of a full repaint of the flat. Far too many tenants believe they must bear this cost in full upon handover. That is not the case. If the walls show only signs of normal wear and tear, the cost does not fall on the tenant.

Current value, not replacement value

Where the tenant is genuinely liable for damage, the measure of compensation is not the cost of replacement as new. If repair is not possible or would be disproportionate, the tenant is liable for the current value of the damaged installation, calculated taking into account the wear resulting from use in conformity with the contract.

To determine this value, specific tables are used, drawn up jointly by the Swiss Tenants' Association (SMV/ASLOCA) and the Swiss Homeowners' Association (HEV/APF). These tables indicate the average lifespan of each component of the leased property and allow the residual value to be calculated.

A practical example

A tenant hands back the flat in 2019. The tenant's children have drawn on a wall with felt-tip pens: this constitutes damage that goes beyond normal wear and tear. The wall had been freshly painted in 2004, and the cost of the paintwork amounted to CHF 7,000.

According to the tables, the average lifespan of a coat of paint is 20 years. From 2004, the paintwork would have been fully depreciated by 2024. In 2019, there were still 5 years remaining until full depreciation. The residual value was therefore 5/20 of the original cost.

Result: the tenant must pay CHF 1,750, i.e. one quarter of the total cost. Not CHF 7,000.

Beware of the reference date

A very common error in these calculations concerns the starting date used to compute the lifespan. The starting point is not the date the lease commenced, but the date on which the installation was actually carried out, which may well predate the start of the tenancy.

This technical detail can change the amount owed considerably, and it is frequently overlooked.

Fully depreciated installations

Where an installation has reached the end of its lifespan and no longer has any residual value, the landlord cannot, in principle, claim anything from the tenant.

This does not, however, entitle the tenant to deliberately damage components that are already fully depreciated. Ticino case law has held that, where damage is intentional or results from gross negligence, the tenant may be required in equity to compensate the value of the installation even beyond its theoretical lifespan (judgment of the II CCA of 13 March 2019, case 12.2017.167, consid. 7).

Legal scholarship further confirms that floors, walls, and roofs retain a certain value even after their theoretical lifespan has elapsed (CPra Bail, Aubert, Art. 267 CO N 29). In such cases, however, the landlord must demonstrate that, despite their age, these components still had a residual value at the start of the tenancy, supported by adequate evidence and not mere assertions of the parties (judgment of the II CCA of 29 September 2014, case 12.2013.210, consid. 3.2).

For owners of older but valuable buildings, the advice is clear: document the condition of the leased property at the time of handover to the tenant with meticulous care.

Estimates, not an obligation to repair

One final relevant point: the costs chargeable to the tenant may be calculated on the basis of estimates, without the landlord being obliged actually to carry out the works. The landlord remains free to repair the damaged installation or not.

Legal assistance in lease law matters

Disputes over the return of leased property are among the most common in lease law. Hugo Haab, Attorney-at-Law, and Roberto Haab, Attorney-at-Law, at Studio Legale e Notarile Haab, Via Ludovico Ariosto 5, Lugano, regularly advise both tenants and landlords in these matters.

For a personal consultation: info@haablegal.ch | +41 91 913 30 70