Rent payments when the shop is closed
Although the special situation rather than the extraordinary situation has applied since June 2020, various facilities have been and continue to be affected by officially ordered closures. What does this mean for the rents of the store premises? What must or can I do now as a landlord or tenant? Is there still an obligation to pay rent? Unfortunately, we cannot give a conclusive answer, as such a situation has never existed before and is constantly changing.
A federal law (Covid 19 Business Rent Act) was planned, which would have provided that business tenants who had to close or reduce their business due to Covid regulations should only pay 40% of the rent for the duration of the closures or restrictions. However, the corresponding bill was rejected by parliament in early December 2020.
The affected business tenants would therefore have to assert their claims for a waiver or at least a reduction of the rent in court, unless a bilateral solution can be found with the landlord. However, the legal situation has not yet been clarified and it is uncertain how a court would rule in the event of a dispute. We assume that there is an interest on the part of both tenant and landlord that business can continue when the situation returns to normal. When the clientele returns, rent can be paid again. The bankruptcy of a tenant is certainly not in the interest of a landlord. We advise you to consult with your landlord promptly and, if possible, record a mutually acceptable solution in a written agreement.
We are pleased to give you some explanations on individual questions:
Do I still have to pay rent?
That question is debatable. If the rented property can no longer be used for the contractually agreed purpose at all, a reduction in rent may be appropriate for the period during which the business must remain closed. If it becomes completely impossible to use the property, a reduction of the rent by 100% might even be possible. However, it must be examined in each individual case whether and to what extent it is impossible to use the rented property and/or a so-called unreasonableness exists. The tenant is required to provide evidence of this. If you are affected by the closure, we advise you to contact the landlord immediately in order to negotiate a solution. You will find a template for this in the download area.
Can I terminate the rental contract extraordinarily due to the current situation?
A court decision on this question has not yet been made. Expert opinions say the following: If the continuation of your business appears unreasonable due to the current situation of the coronavirus, this is probably a so-called important reason according to Art. 266g OR. This entitles you to an extraordinary termination of the rental contract in compliance with the statutory period of notice of 6 months to any termination date. The continuation of the business is likely to be unreasonable in particular if the use for the agreed purpose is completely impossible. To give a possible example: the management of a fully furnished restaurant with the obligation to observe certain opening hours. The tenant must be able to prove the unreasonableness.
In order to get out of the rental agreement quickly, you as the tenant have the usual options:
- You can find a solvent new tenant or
- transfer the business to a third party.
The provisions of the Code of Obligations apply to both options. For many business tenants, however, a termination option with a 6-month notice period is unlikely to be of interest, as they have made large investments, for example. In addition, as mentioned above, it is still unclear whether the Corona crisis constitutes an important reason within the meaning of Art. 266g OR. It will also be decisive how long the crisis or the closure of the business will last. Therefore, we recommend that you consider whether an agreement with the landlord regarding rent payments (or at least a reduction thereof) might be more sensible for you before terminating the lease.
I am giving up my apartment or business premises at the end of the month, but I do not wish to participate in the handover due to the risk of infection. What can I do?
If you have concerns about handing over your home or business premises in person, we advise you to inform the landlord of your concerns. Ask the landlord to allow you to return the keys by registered mail. The landlord can then take possession of the rented property alone. In order to avoid later discussions about tenant damage, we advise you to document the condition of the apartment well beforehand - possibly with photos.
Does a possible rent reduction also apply to my private apartment?
Private living is not affected by the emergency ordinance. The rent is still owed and there are no extraordinary termination options.