There are two aspects to this question, working from home and the type and intensity of the renovation work in the building.
In Switzerland, in principle, the tenant is entitled to request a rent reduction from the landlord in the event of a defect in the rented premises that hinders or restricts the use of the rented property (Art. 259d para. 1 CO).
A defect exists when “the actual condition of the premises deviates from the agreed conditions, i.e. when the rented premises do not provide the qualities promised in the rental agreement or the qualities which the tenant could legitimately expect based on the agreed use” (ATF 135 III 345 consid. 3.2 p. 347 and references).
“The defect may be material or immaterial”. (Judgment of TF 4A_208/2015, c. 3.1; see eg: ATF 135 III 345 consid. 3.2 p. 347; judgments 4A_476/2015 of 11 January 2016 consid. 4.3.2; 4A_628/2010 of 23 February 2011 consid. 3.1).
We recommend that you take a look at the norms of the canton of your residence, for example for the State of Geneva.
Working from home (WFH)
Employees have been WFH on and off for almost a year now due to the COVID-19 pandemic. WFH has been mandatory in Switzerland since January 18th.
If your landlord is carrying out renovation work in the building (for example, renovating the facade), during working hours, the first question to ask yourself is – have you been informed as a tenant of the type of renovation work being done, the inconveniences it will cause and the duration?
Under Swiss law, the lease of an apartment covers the use of a residential property for a certain period of time, in return for payment of rent.
The lease contract does not deal with how the tenant plans to use the apartment (apart from the fact that it is residential and cannot be sublet without the landlord’s consent).
Therefore, whether or not the tenant is working from home there (just as if you were retired or on vacation and spending more time in your apartment), it does not grant you additional rights against your landlord. The nuisances, of a certain intensity, constitute a defect and thus entitle the tenant to ask for a reduction of rent (please see below).
The reduction granted depends on the discretion of the judge and case law. It is therefore important to record the noise, take pictures of the renovation work, because the evidence is important for an eventual case against the landlord.
Renovation work can consist of repairing the facade, changing an elevator, installing wooden flooring in the apartment above yours or installing double-glazed windows. These renovation works will most likely result in nuisances (for example, dust, noise, paint smell, lack of light, etc.).
These nuisances are therefore a defect that restrict the use of the rented property and could be – based on the intensity and duration of the works – a basis for requesting a reduction in your rent.
We advise you to send an email to the landlord regarding the disturbing renovation work (if the intensity reasonably justifies it) and to reserve your rights.
Then keep a written record of the daily duration of the disturbing renovation work, the intensity of the noise, odours, etc, take pictures and videos as evidence. These details, images and videos will be very useful in the event of a dispute. The rent reduction is principle due for the entire duration of the defect.
Before filing a request for conciliation with the Conciliation Authority for rent reduction, we recommend that you contact your landlord to discuss the reduction.
We recommend not to make any claims in writing or approve any offers without contacting a lawyer so that you do not waive your rights.
Many tenants are afraid to have their lease terminated or the not renewed because they availed of their rights. While it is true that no landlord likes a tenant who exercises his rights, there may well be a tactful way of doing so.
It is important to know that a landlord that terminates a lease prematurely right soon after the tenant has made a written claim could be deemed invalid as a “revenge termination.”
If the court decides that the termination was by revenge, then the tenant is protected against a termination for a period of 3 years. However, this period can be shorter if the landlord really needs the apartment for important reasons, which depend on the discretion of the judge.
This advice was prepared by Renuka Cavadini and Angela Carvalho of Page & Partners