Facts
The dispute opposes A.A. and B.A., the landlords, to C. and B., the tenants, regarding the determination of the initial rent. On September 11, 2006, A.A., represented by her daughter B.A., concluded a one-year lease with C. and B. for a net monthly rent of 3,000 francs. No notice of determination of the initial rent on the official form was provided to the tenants.
On April 26, 2012, C. and B. filed a request with the Conciliation Commission for Tenancy and Rent Matters of the Canton of Geneva to determine the initial rent, concluding that a yield calculation should be ordered, the rent should be set at 1,000 francs per month from September 15, 2006, and the overpayment should be reimbursed with interest. After the conciliation attempt failed, the tenants filed their claim with the Tenancy and Rent Tribunal of the Canton of Geneva.
The Tenancy and Rent Tribunal rejected the claim as directed against B.A., but dismissed A.A.'s "request" for a finding of abuse of rights. The Court of Justice of the Canton of Geneva upheld the first instance judgment, considering that the landlord had not used the official form for the determination of the rent when the lease was concluded and that no abuse of rights could be attributed to the tenants who had relied on the defect.
A.A. and B.A. filed a civil law appeal to the Federal Tribunal.
Considerations
The Federal Tribunal ruled that the fact that the landlord did not use the official form, although it was mandatory, does not result in the nullity of the lease contract in its entirety, but only the nullity of the rent set. This solution results from a reductive teleological interpretation of Art. 270 para. 2 CO, the purpose of this provision being to allow the tenant to understand the scope and justification of the rent increase.
When the official form has not been used, the tenant can take legal action to determine the initial rent and to recover any overpayment. Their action for…