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Landlords who have drawn up a lease themselves have sometimes encountered difficulties or even disputes because they were unaware that certain clauses were invalid. 

Articles of mandatory and secondary legislation

A distinction must be made between mandatory and secondary legislation. No one may derogate from mandatory law. Clauses that are contrary to mandatory law are null and void. 

Drafting the lease and special conditions

Special clauses are often drafted to clarify certain points, for example concerning the upkeep of a villa garden, incidental expenses, the installation of a washing machine by the tenant, etc. Most of the articles concerning rental leases are mandatory. Laws and regulations must be complied with, and clauses that run counter to mandatory law are null and void. Before drafting a particular clause, you should check whether it is contrary to the law. There is no point in drafting clauses that are legally null and void. All clauses that disproportionately disadvantage the tenant are unfair and legally invalid. 

Examples of invalid clauses

The following clauses have been drafted by people with no knowledge of tenancy law and are invalid: 

• The landlord asks the tenant to pay the deposit into his private account
• The landlord asks for a rent guarantee for a flat above the maximum legal amount
• The landlord requires the tenant to pay for certain maintenance or repair costs that must be borne by the landlord
• The tenant is obliged to pay for major repairs or replace broken blinds at his own expense
• The minimum notice period for terminating the lease is not respected. For example, the minimum notice period for commercial premises is 6 months, and 3 months for unfurnished accommodation
• The term of the index-linked or staggered lease is too short
• The lease also provides for indexation and staggering of the rent
• The lease is linked to a concurrent transaction, such as taking out life insurance or buying furniture
• The tenant undertakes not to assert his or her rights, for example not to contest a rent increase or an initial rent
• The subletting of a 4-room flat is prohibited in the lease

Ask a professional for advice

To ensure that your tenancy agreement is properly drafted, seek the advice of a property professional or a lawyer specialising in tenancy law. A well-drafted tenancy agreement increases trust with the tenant and avoids unnecessary uncertainty and conflict. 

Managing your property in the canton of Geneva

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 © Written by Esther Lauber, Property Fiduciary with Federal Diploma of Higher Vocational Education and Training, your real estate manager in Geneva Switzerland, speaking French, English and German
Mostly translated from French to English with DeepL