Facts
Spouses [B.] and [C.] jointly rented a condominium apartment, which they used as a family home. After their separation in 2014, both spouses remained parties to the lease agreement. After the death of the landlord, his wife A. terminated the tenancy with respect to [B.] and C. Thereupon, [B.] alone filed a lawsuit to challenge the termination.
The Federal Supreme Court had to decide whether [B.] as the sole tenant is actively legitimized to challenge the termination or whether she would also have had to include her spouse [C.] as a co-tenant in the proceedings.
Considerations
The Federal Supreme Court holds that the analogous application of Art. 273a CO is not justified in the case of joint rental of a family apartment by spouses. In contrast to cases where only one spouse is a contracting party, here both spouses as tenants have rights under the lease agreement. Therefore, each spouse can challenge the termination independently, but must include the non-challenging co-tenant(s) on the passive side of the proceedings.
The Federal Supreme Court thus changes its previous case law from BGE 118 II 168, according to which Art. 273a CO was analogously applicable in the case of joint rental of a family apartment and each spouse could challenge the…