Ancillary costs - a minor matter?
Why it’s also in the best interest of commercial tenants to carefully review their utility bills. By Patrick Strub, lic. iur., attorney, legal expert, and editor at the Beobachter Advisory Center.
Our credit balance: CHF 2 865. Please transfer the amount within 30 days." This or something similar is often the short end of the long service charge statement. Business tenants are also well advised to take a closer look at the statement - and always check the rental agreement as well. This is because only items that have been contractually excluded as service charges must be paid - everything else is considered to be included in the net rent. The courts are strict with landlords: unclear clauses such as "All ancillary costs shall be borne by the tenant" or vague terms such as "operating costs" are simply irrelevant. Nor is a reference to the General Terms and Conditions of Contract of any use: It must be clear to tenants from the tenancy agreement itself which ancillary cost items they must pay in addition to the rent. Otherwise, they are deemed to be included in the net rent and are not owed additionally.
Common service charge items for commercial properties are, in particular, heating and hot water, caretaking and environmental work, monitoring of the property, elevator, air conditioning, water and waste water, waste disposal and general electricity. In addition to the contractually agreed items, a surcharge may be made for administrative expenses for the service charge settlement - even if this is not expressly stated in the contract. What the arbitration authorities and rental courts accept under this heading is not entirely uniform. In most parts of Switzerland, it is three percent of the total service charge.
However, not everything can simply be passed on to the tenant at will. Only services (by the landlord or a third party) that are related to the use of the property can be ancillary costs, but not: repairs, investments, insurance premiums (exception: insurance that relates exclusively to the heating system), property taxes, public charges and development fees. If, for example, a rental agreement provides for building insurance premiums as an ancillary cost item, this is simply irrelevant.
The landlord must settle those ancillary cost items that are owed on account (or - more rarely - on account without payments on account) in accordance with the rental agreement once a year. If the payments on account were higher in total than the service charges actually incurred, the landlord must repay the difference to the tenant. Conversely, the landlord may charge the difference - regardless of how high it is. However, a landlord who knowingly entices his tenants with excessively low amounts on account when the contract is concluded will not be able to enforce a high additional claim. In such a case, it is important that the tenants defend themselves against the first service charge bill.
In the event of disputes about ancillary costs, the conciliation authority (known as the rental office in the canton of Berne) is responsible - as is always the case when it comes to the rental of immovable property. The procedure is also free of charge for business tenants.
Common service charge items for commercial properties are, in particular, heating and hot water, caretaking and environmental work, monitoring of the property, elevator, air conditioning, water and waste water, waste disposal and general electricity. In addition to the contractually agreed items, a surcharge may be made for administrative expenses for the service charge settlement - even if this is not expressly stated in the contract. What the arbitration authorities and rental courts accept under this heading is not entirely uniform. In most parts of Switzerland, it is three percent of the total service charge.
However, not everything can simply be passed on to the tenant at will. Only services (by the landlord or a third party) that are related to the use of the property can be ancillary costs, but not: repairs, investments, insurance premiums (exception: insurance that relates exclusively to the heating system), property taxes, public charges and development fees. If, for example, a rental agreement provides for building insurance premiums as an ancillary cost item, this is simply irrelevant.
The landlord must settle those ancillary cost items that are owed on account (or - more rarely - on account without payments on account) in accordance with the rental agreement once a year. If the payments on account were higher in total than the service charges actually incurred, the landlord must repay the difference to the tenant. Conversely, the landlord may charge the difference - regardless of how high it is. However, a landlord who knowingly entices his tenants with excessively low amounts on account when the contract is concluded will not be able to enforce a high additional claim. In such a case, it is important that the tenants defend themselves against the first service charge bill.
In the event of disputes about ancillary costs, the conciliation authority (known as the rental office in the canton of Berne) is responsible - as is always the case when it comes to the rental of immovable property. The procedure is also free of charge for business tenants.
Book tip:
Service charge settlement, reference interest rate, maintenance or termination: This Beobachter standard work shows in an easy-to-understand way how to proceed correctly in every situation and creates the ideal basis for a better relationship between tenants and landlords. With numerous tips, examples and sample letters.
7th, expanded and updated edition 2010, 256 pages, Fr. 34.-.

Do you need legal advice?
The Beobachter Consulting Center offers you and your employees expert advice by telephone on legal issues concerning your company - 6 months for only Fr. 99.-. Order the consulting package for SMEs at
www.beobachter.ch/kmu or 0800 83 0800.
The Beobachter Consulting Center offers you and your employees expert advice by telephone on legal issues concerning your company - 6 months for only Fr. 99.-. Order the consulting package for SMEs at
www.beobachter.ch/kmu or 0800 83 0800.












