Facts
The plaintiffs, a community of heirs, were tenants of a 4.5-room apartment in Zurich. The tenancy lasted from May 1, 1993, to January 31, 1999. The plaintiffs paid CHF 218.-- per month in advance for heating and operating costs. The defendant, Pensionskasse [S.] , invoiced these costs once a year. The plaintiffs are of the opinion that they have paid too much in ancillary costs and are demanding reimbursement for the entire tenancy period.
After no agreement could be reached before the conciliation authority, the plaintiffs filed a lawsuit with the Zurich Rent Court and requested that the defendant be ordered to reimburse CHF 8,011.80 plus interest. By judgment of March 8, 2001, the Rent Court dismissed the lawsuit. The plaintiffs appealed to the High Court of the Canton of Zurich. By decision of November 8, 2001, the High Court partially upheld the lawsuit and ordered the defendant to pay the plaintiffs CHF 642.10 plus interest. The lawsuit was dismissed in the remaining amount.
By appeal of January 14, 2002, the plaintiffs request the Federal Court to overturn the decision of the High Court of the Canton of Zurich of November 8, 2001, and to order the defendant to pay CHF 8,011.80 plus interest.
Considerations
The Federal Court first examined whether the ancillary costs invoiced and paid were due based on the contractual agreement between the parties. According to Art. 257a para. 2 CO, the tenant is only obliged to pay ancillary costs if they have been specifically agreed upon with the landlord. This provision expresses that the costs are generally to be borne by the landlord.
The Federal Court found that the defendant was not authorized to charge the plaintiffs for public levies and fees. Furthermore, the parties agree that the costs for garden maintenance should not have been invoiced because they were not mentioned in the rental agreement. However, it was disputed whether the warm water costs could be charged to the tenants as ancillary costs.
The Federal Court decided that the warm water costs were not due since they were not clearly and precisely specified in the rental agreement. The general terms and conditions do not create an obligation to pay the warm water costs. The defendant was also not authorized to claim management costs for the heating bill and for the preparation of the ancillary costs bill, insofar as they are not related to the heating.
The Federal Court…