Lease agreement for a subsidized apartment: agreement on ancillary costs

Facts

This case concerns a dispute between a landlord and tenants regarding the ancillary costs of a subsidized apartment. The landlord appealed the decision of the cantonal court, which ruled that the agreement on ancillary costs did not meet the requirements of Art. 257a para. 2 of the Swiss Code of Obligations (CO).

The main facts are as follows

• The parties concluded a written lease contract for a subsidized apartment, the rent of which was controlled by an authority.
• The contract included a section "Advance payment of ancillary costs" without detailing the items concerned.
• The landlord referred to Art. 38 of the Federal Act on the Promotion of Low-Cost Housing (LCAP) and Art. 25 of the Ordinance on the Promotion of Low-Cost Housing (OLCAP) to define the ancillary costs.
• The cantonal court ruled that this reference was not sufficient to meet the requirements of Art. 257a para. 2 CO.

Considerations

The Federal Supreme Court confirmed the decision of the cantonal court. It first examined whether Art. 257a para. 2 CO was applicable to subsidized housing, despite the exception provided for in Art. 253b para. 3 CO for the contestation of abusive rents.

The Federal Supreme Court concluded that Art. 257a para. 2 CO also applies to subsidized housing, as this provision aims to protect tenants by requiring a special agreement on ancillary…