1.1 Typical lease length?
Generally, the parties are free to determine the lease length according to their economic needs. Typically, commercial leases are entered into for a five-year term (such term being the prerequisite for an indexed rent). Further, commercial lease agreements often provide for options in favour of the tenant for another term of five years.
1.2 Maximum/minimum lease length if any?
Leases may be entered into for a definite or an indefinite period of time.
In respect of leases entered into for a definite period, i.e. leases not granting ordinary termination rights and ending after the lapse of the stipulated term, there are no express statutory provisions prescribing a minimum or maximum lease length. However, the maximum lease length is limited under general principles of Swiss law. In absence of clear precedents expressly addressing the maximum length it is fair to say that terms of 20 or even 30 years are still admissible (a 20-year term can also be combined with two options for additional five-year terms). Such terms also correspond with the longest terms market participants agree upon. Contract provisions linking the term of the lease to the existence of a business or company (e.g. lease terminable only upon winding up of a certain company etc.) are, according to court rulings, after the lapse of the admissible period of time (around 30 years), subject to ordinary termination.
Leases entered into for an indefinite period, i.e. leases not stipulating any term, are, as a rule, terminable with a five months notice to certain dates (31.3. or 30.6. or 30.9. of each calendar year) or, alternatively, to the end of a three month lease duration.
Leases expressly excluding termination rights of any party (so called “eternal leases”) are inadmissible. However Swiss courts will, generally, not hold such leases as null and void, but only reduce the “eternal term” to an admissible lease length.
1.3 Statutory controls and obligations re renewal/termination of leases (does tenant have automatic right to renewal or can they apply to the courts for a new lease); also does some form of notice have to be served to terminate a lease to avoid renewal?
Fixed term leases end after the lapse of the respective term. If the parties continue the lease after the lapse of such term, the lease is transformed into a lease for an indefinite period.
Leases entered into for an indefinite term, i.e. lease agreements not providing for a term, may be terminated on 6 months notice to expire on certain dates (31.3. or 30.6. or 30.9. of each calendar year) or, alternatively, to the end of a 3 month lease duration.
Commercial leases entered into for an indefinite term or a fixed term may, generally, be extended by the competent court for a maximum period of 6 years. To obtain an extension by the court a tenant would be required to prove that the termination of the lease would result in hardship for the tenant which is not justifiable by the interests of the landlord. In weighing the interests, the competent authority takes into account the following criteria:
(a) the circumstances of entering into the lease agreement and its terms;
(b) the duration of the lease relationship;
(c) the economic condition of the parties and their behaviour;
(d) a need for personal use by the landlord and the urgency of such need;
(e) the local market conditions for business premises.
The tenant may only twice apply to the court for an extension. The two extensions may in the aggregate not exceed 6 years. In practice, courts seldom grant extensions reaching the maximum period, because often, reasonable replacement premises for the tenant are available within a shorter timeframe.
Further, a termination by the landlord may be subject to challenge by the tenant, if it is given in violation of principles of good faith. This is in particular deemed to be the case, if the termination is given:
(a) because the tenant has in good faith asserted contractual claims;
(b) to impose unilateral changes detrimental to the tenant or to adjust the rent;
(c) during a conciliation or court proceeding in relation to the lease relationship (save where the tenant abusively initiated such proceedings);
(d) prior to the expiration of three-year “barring-period” after a conciliation or court proceeding regarding the lease relationship in which the landlord:
- lost to a substantial degree;
- has withdrawn or substantially reduced his claim or action;
- has waived his right to appeal to the judge;
- has concluded a settlement or otherwise reached an agreement with the tenant.
A successful challenge makes the termination invalid. Further, it triggers the “barring period”, which factually precludes the landlord from giving termination for the next three years.
1.4 Any overriding statutes concerning the ability of the tenant to break a fixed term lease (whether or not included as a term of the lease)?
A tenant may terminate fixed term leases with immediate effect, only if:
(a) the landlord does not either transfer the premises at the agreed time or transfers it in time but with defects excluding or significantly impairing its suitability for the predetermined use and, in addition, he fails to transfer the premises or cure the defects within a reasonable period of time (generally 5 to 15 business days);
(b) after the transfer of the premises, the landlord is aware of a defect preventing or significantly impairing the predetermined use of the premises and does nevertheless not remedy such defect within a reasonable period of time.
Defects which affect the use of the premises less significantly lead only to damages claims and other remedies (reduction of rent, deposit of rent, remedy of defects by third party).
Further, a tenant may terminate a fixed term lease by extraordinary termination, if he can avail himself of valid reasons rendering the further performance of the lease intolerable. Courts construe such reasons very narrowly. Generally, only circumstances not foreseeable at the time of entering into the lease agreement may be taken into account. In case the tenant can avail himself of valid reasons he may terminate the lease at any point in time respecting the statutory notice of six months.
1.5 Any other security of tenure provisions available to a tenant that would frustrate possession or prevent receipt of market rents?
No.
Social Media cookies collect information about you sharing information from our website via social media tools, or analytics to understand your browsing between social media tools or our Social Media campaigns and our own websites. We do this to optimise the mix of channels to provide you with our content. Details concerning the tools in use are in our privacy policy.