Facts
In this case, the married couple A. and B. (the plaintiffs) rented a 5-room apartment from D. (the landlord) on August 11, 1997. The rental contract stipulated that the plaintiffs would make monthly advance payments of CHF 150 for the ancillary costs (heating, hot water, stairwell cleaning, antenna and cable TV fees, caretaker, elevator service, water, sewage, general electricity, and garbage collection fee). However, the actual ancillary costs amounted to more than double (around 210-260%) of the paid advance payments.
The plaintiffs did pay the respective invoices, but subsequently demanded the reimbursement of the amount exceeding 20% of their advance payments for the accounting periods from 1998/1999 to 2002/2003, which they quantified at CHF 10,143. For this, they initially sued C. as the legal successor of the now deceased landlord before the Conciliation Authority and with a claim filed on June 4, 2004 before the Rental Court of the District of Zurich.
Considerations
The Federal Supreme Court decided that the freedom of contract applies to the agreement on advance payments for ancillary costs within the framework of the rules of the Code of Obligations. The term "advance payment" indicates that the monthly payments are provisional, which are to be credited against the annually accrued and contractually owed ancillary costs of the tenant according to the correct accounting.
The Federal Supreme Court further stated that…