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To what extent can the landlord reject liability for property damage caused by water damage to vehicles (middle of the parking space)?

March 13, 2025

Contract law

Open in Omnilex

The landlord cannot fundamentally deny liability for property damage caused by water damage to the renter's vehicles. According to Art. 259e OR, the landlord is liable for damages caused to the renter due to a defect in the rented property, unless he proves that he is not at fault (Art. 259e OR). This means that the landlord must initially prove that the water damage was not caused by misconduct for which he is responsible.

A damage-causing defect may consist of the fact that the parking garage was not properly maintained and, for example, a leak led to water ingress. In this case, the renter must prove the defect as well as the damage incurred and establish a causal link between the defect and the damage (4A_114/2023; Art. 259e OR).

If the landlord proves that the damages were caused, for example, by force majeure, such as a severe storm that damaged a completely intact building structure, he can deny liability (zeitschrift-wohnen.ch/heft/beitrag/.../haftung-des-vermieters-fuer-mieterschaeden.html 7). Liability is also excluded if the renter did not report the defect in a timely manner and the damage could have been prevented as a result (zeitschrift-wohnen.ch/heft/beitrag/.../haftung-des-vermieters-fuer-mieterschaeden.html 6).

Additionally, claims for damages under the property owner liability according to Art. 58 OR can be made if the damage was caused by faulty installations or inadequate maintenance of the parking garage. In this case, the landlord is liable even without fault (MJ230080).

If the landlord excludes liability for such damages in a contract, any exclusion of liability for gross negligence or intent according to Art. 100 Abs. 1 OR would be null and void (4A_237/2023; Art. 100 Abs. 1 OR). A waiver of liability for slight negligence can also be deemed null and void under certain circumstances, e.g., if the landlord's liability arises from the operation of a publicly licensed business (Art. 100 Abs. 2 OR).

In summary, the landlord would have to prove that he is not at fault for the damage or that force majeure or the fault of third parties is the cause of the damage in order to deny his liability. At the same time, there remains the possibility that a contractual exclusion of liability may not be effective under certain conditions.

Sources

Federal Act of March 30, 1911 concerning the amendment of the Swiss Civil Code (Fifth Part: Law of Obligations) > Second Division: The individual contractual relationships > Eighth Title: The Lease > First Section: General Provisions > G. Defects during the rental period > II. Rights of the Tenant > 4. Compensation for Damages

Art. 259e OR

If the tenant suffers damage due to the defect, the landlord must provide compensation, unless he proves that he is not at fault.

Federal Act of March 30, 1911 concerning the amendment of the Swiss Civil Code (Fifth Part: Law of Obligations) > Second Division: The individual contractual relationships > Eighth Title: The Lease > First Section: General Provisions > G. Defects during the rental period > II. Rights of the Tenant > 4. Compensation for Damages

Art. 259e OR

If the tenant suffers damage due to the defect, the landlord must provide compensation, unless he proves that he is not at fault.

federal - Ire Court of Civil Law - December 19, 2024

4A_114/2023

In the final part of their appeal, the tenants accuse the cantonal court of violating articles 256, 259a, and 259e CO by only awarding them damages in the amount of 2,800 fr., corresponding to the bill of the computer technician who intervened for 3.5 days in the apartment. They argue, as before the previous authority, a total damage of 362,696 fr.50, which would arise from the balance sheets and income statements of one of the renting companies for 2014 (22,365 fr.55) and for 2015 (340,330 fr.95). 8.1. According to article 259e CO, a tenant who has suffered damage due to a defect in the rented property is entitled to damages if the landlord does not prove that no fault is attributable to him. This is a case of application of contractual liability (art. 97 et seq. CO), which presupposes a defect in the rented property, damage, a causal link between the two, and a fault of the landlord, which is presumed. It is the tenant's responsibility to establish the first three elements, while the landlord must prove that he has not committed any fault (judgments 4A_442/2020 of November 11, 2020, consid. 4.2; 4A_32/2018 of July 11, 2018, consid. 2.2; 4A_395/2017 cited, consid. 6.2). The tenant must in principle prove not only the existence of the damage but also its amount (art. 42 para. 1 CO). However, when the exact amount of damage cannot be established, the judge determines it fairly considering the ordinary course of events and measures taken by the injured party (art. 42 para. 2 CO). This provision establishes facilitated evidence in favor of the claimant when the damage is of such a nature that certain evidence is objectively impossible to present or cannot reasonably be required, to the point that the claimant finds themselves in a state of necessity regarding the evidence (Beweisnot) (ATF 147 III 463 consid. 4.2.3 and the cited judgments).

federal - Ire Court of Civil Law - December 19, 2024

4A_114/2023

In the final part of their appeal, the tenants accuse the cantonal court of violating articles 256, 259a, and 259e CO by only awarding them damages in the amount of 2,800 fr., corresponding to the bill of the computer technician who intervened for 3.5 days in the apartment. They argue, as before the previous authority, a total damage of 362,696 fr.50, which would arise from the balance sheets and income statements of one of the renting companies for 2014 (22,365 fr.55) and for 2015 (340,330 fr.95). 8.1. According to article 259e CO, a tenant who has suffered damage due to a defect in the rented property is entitled to damages if the landlord does not prove that no fault is attributable to him. This is a case of application of contractual liability (art. 97 et seq. CO), which presupposes a defect in the rented property, damage, a causal link between the two, and a fault of the landlord, which is presumed. It is the tenant's responsibility to establish the first three elements, while the landlord must prove that he has not committed any fault (judgments 4A_442/2020 of November 11, 2020, consid. 4.2; 4A_32/2018 of July 11, 2018, consid. 2.2; 4A_395/2017 cited, consid. 6.2). The tenant must in principle prove not only the existence of the damage but also its amount (art. 42 para. 1 CO). However, when the exact amount of damage cannot be established, the judge determines it fairly considering the ordinary course of events and measures taken by the injured party (art. 42 para. 2 CO). This provision establishes facilitated evidence in favor of the claimant when the damage is of such a nature that certain evidence is objectively impossible to present or cannot reasonably be required, to the point that the claimant finds themselves in a state of necessity regarding the evidence (Beweisnot) (ATF 147 III 463 consid. 4.2.3 and the cited judgments).

Law - Magazine LIVING

zeitschrift-wohnen.ch/heft/beitrag/.../haftung-des-vermieters-fuer-mieterschaeden.html 6

The landlord becomes liable for damages if they are responsible for the defect and do not remedy it. There must also be a causal link between the neglected maintenance and the damage incurred, meaning that the former must be the cause of the latter. However, the causal link can be interrupted by force majeure (for example, an earthquake or a severe storm) as well as by the fault of the tenant or a third party, which eliminates the landlord's liability. An interruption can also occur if the tenant does not report the defect and the damage could have been avoided with timely reporting.

zeitschrift-wohnen.ch/heft/beitrag/.../haftung-des-vermieters-fuer-mieterschaeden.html 2

The question of the landlord's liability arises particularly when the tenant's property is damaged by external influences, such as in the case of a leaking roof after a storm, water ingress after a flood, or mold infestation of items stored in a damp basement. According to Art. 259e of the Swiss Code of Obligations (OR), the landlord is liable if the tenant suffers damage due to a defect in the property and the landlord fails to prove that they are not at fault. A prerequisite for liability is initially that there is a defect in the rental property.

zeitschrift-wohnen.ch/heft/beitrag/.../haftung-des-vermieters-fuer-mieterschaeden.html 4

The landlord is obliged to hand over the property in a condition suitable for the intended use and to maintain it in that condition. The rental object is defective if it is not in the condition it should have according to the contract and that the landlord specifically owes. The contractual condition corresponds to what the landlord owes at the appropriate time and what the tenant may objectively and in good faith expect under the given circumstances. This condition includes all characteristics that are relevant for the suitability for the intended use as well as the particularly assured, potentially exceeding properties.

zeitschrift-wohnen.ch/heft/beitrag/.../haftung-des-vermieters-fuer-mieterschaeden.html 7

The following examples should illustrate this: If a leak due to neglected maintenance on the roof or facade was responsible for water entering, and the tenant had already alerted the landlord to this problem without any action being taken, the liability of the owner can fundamentally be affirmed. However, if the building envelope or the roof was maintained and a storm sweeps the roof away (force majeure), there is no fault on the part of the landlord. The same applies, for example, if water enters through the windows during a flood and damages the tenant's furniture.

Law - Magazine LIVING

zeitschrift-wohnen.ch/heft/beitrag/.../haftung-des-vermieters-fuer-mieterschaeden.html 6

The landlord becomes liable for damages if they are responsible for the defect and do not remedy it. There must also be a causal link between the neglected maintenance and the damage incurred, meaning that the former must be the cause of the latter. However, the causal link can be interrupted by force majeure (for example, an earthquake or a severe storm) as well as by the fault of the tenant or a third party, which eliminates the landlord's liability. An interruption can also occur if the tenant does not report the defect and the damage could have been avoided with timely reporting.

zeitschrift-wohnen.ch/heft/beitrag/.../haftung-des-vermieters-fuer-mieterschaeden.html 2

The question of the landlord's liability arises particularly when the tenant's property is damaged by external influences, such as in the case of a leaking roof after a storm, water ingress after a flood, or mold infestation of items stored in a damp basement. According to Art. 259e of the Swiss Code of Obligations (OR), the landlord is liable if the tenant suffers damage due to a defect in the property and the landlord fails to prove that they are not at fault. A prerequisite for liability is initially that there is a defect in the rental property.

zeitschrift-wohnen.ch/heft/beitrag/.../haftung-des-vermieters-fuer-mieterschaeden.html 4

The landlord is obliged to hand over the property in a condition suitable for the intended use and to maintain it in that condition. The rental object is defective if it is not in the condition it should have according to the contract and that the landlord specifically owes. The contractual condition corresponds to what the landlord owes at the appropriate time and what the tenant may objectively and in good faith expect under the given circumstances. This condition includes all characteristics that are relevant for the suitability for the intended use as well as the particularly assured, potentially exceeding properties.

zeitschrift-wohnen.ch/heft/beitrag/.../haftung-des-vermieters-fuer-mieterschaeden.html 7

The following examples should illustrate this: If a leak due to neglected maintenance on the roof or facade was responsible for water entering, and the tenant had already alerted the landlord to this problem without any action being taken, the liability of the owner can fundamentally be affirmed. However, if the building envelope or the roof was maintained and a storm sweeps the roof away (force majeure), there is no fault on the part of the landlord. The same applies, for example, if water enters through the windows during a flood and damages the tenant's furniture.


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