Facts
The case concerns a lease for an apartment that was initially used as a family residence. The tenant (appellant) and his wife (daughter of the respondents) were joint tenants. The landlord terminated the lease, whereupon the tenant challenged the termination.
The tenant argued that the termination and the setting of the payment deadline with the threat of termination had not been served separately on his wife as a co-tenant, which would have been required under Art. 266n CO, as it had been a family residence.
The lower court found that at the time of the reminder and termination, it was no longer a family residence, as the wife had definitively left the apartment at the end of February 2012. Therefore, Art. 266n CO was not applicable.
Furthermore, the lower court found that the tenant, who relied on the lack of service on his co-tenant, was acting in an abusive manner, as the co-tenant had already definitively left the rented property before the reminder and termination, and had no interest in the non-dissolution of the lease.
Considerations
The Federal Supreme Court confirmed the assessment of the lower court. It stated that according to Art. 2 para. 2 CC, the open abuse of a right is not granted legal protection. Such an abuse of rights exists here, as the tenant relies on the…