Getting rental deposit back

Accomodation, House and Garden
1
Hello dear forum members. Sorry if this is a bit long, but hopefully might be useful to someone in a similar situation.

I'm having some trouble getting my deposit back. Brief backstory: I found this apartment while still abroad, planning my move to CH, payment was done from a foreign bank (I have bank statements to prove it) I lived in this furnished apt. for about a year. Rent was all inclusive. I.e. there was a single amount, no breakdown for utilities and rent 1 month deposit was paid (between 3 and 4k CHF). Contract states "payed back after receiving back flat and keys" there was no official handover protocol to sign when I moved in, nor when I moved out the landlord was happy with the state of the apartment when I vacated it and said that the deposit will be returned within a month. That meant by end of October. the bank account for the deposit was different than the one used to pay rent, however it was still in the name of the landlord (at least the payment instructions mentioned his name only). I was never contacted by the bank to set up a joint blocked rental deposit account when I asked a year ago why are there 2 different accounts for rent and deposit, I was told that since the deposit is essentially my money, he won't pay taxes on it (since it's not his income), whereas the rent account is taxable income for him

Now on to more recent events: The landlord apologized for the delay citing some issue with his bank and claiming things will be settled "very soon" and that I will "get most of my deposit back" He mentioned that he does not intend to keep it long, even though legally he could. I guess this veiled threat refers to the "1 year after end of lease" rule When pressed with a direct (but still very polite, given the circumstances) question on when to expect the payment, no real/specific answer has been made (communication is via instant messaging). Nor is there any quantification on what does "most of" mean and why it is not "all of" for example Latest reason for delay was cited as being abroad right now (in one of the neighboring countries). How is that relevant, I cannot fathom - he obviously has Internet access, therefore eBanking as well, it's a 1 minute task to wire the money. Let's not pretend that you travel to one of our neighbors and can't use eBanking - that's just a complete BS excuse in my book

I'm growing concerned that something is off here...

*insert "You Don't Say" Nicolas Cage meme*

From what I gathered so far it seems that:

A) The 1 year rule is not really applicable here because: it is not universal/ultimate - see this EF post + cited article.

there is no handover protocol that details any damage that I signed off on (there is no protocol at all, period). No damages are disputed either. There are no silly craftsmen invoices waiting to arrive/be paid

there was no reading of utility meters when I moved in/out, rent was all inclusive

since there is no breakdown of rent vs utilities, he cannot claim that I potentially underpaid/overspent his water, heating or electricity and that he's waiting for an official reconciliation by the utilities company in order to pay me back

there is potentially no blocked account itself from which to ask for funds to be unblocked after the 1 year passes, it's just his 2nd account for all I know... B) He might have broken the law ( par. 1 of Art. 257e ) by using an account in his name for the deposit.

However, some forum members here write that even if this law is violated, there are 0 consequences for the landlord (see this EF post for example). Kind of pointless law then if you ask me. There is a slim chance that maybe he didn't break it, since it's a different account number than the rent so there is some separation?

What are my options?

I thought of these so far...

Active measures:

I can write him a registered letter asking for reasons of the deposit refund delay? Should I also be giving him a deadline to pay in that letter or not yet? A lot of people here and elsewhere write that unless it's registered mail, it doesn't legally exist in Switzerland. Fine, but how does this actually work in practice?

If I send a registered letter, I only have proof that I sent a letter to him (and hopefully that he received it - via online post tracking service). It doesn't prove the content of the letter in any way. He might later claim that I sent him a birthday card via registered mail. He might just simply not pick it up at the post office. What then? Does it become a "he said she said" situation? Do I have to go to a notary so that he confirms the content/wording and then we go together to the post office hand in hand and sign some sworn declaration together that we sent this to that person on this date? Otherwise it seems that anyone can send a registered letter and then claim any content - the post office is not scannning/reading the letters, are they?

Also, I assume the letter must be in one of the official Swiss languages (i.e. German in this case)? So far we communicated in English the whole time, he is fluent. But I have no problem using DeepL or Google Translate to craft up a simple letter.

Can I contact his bank asking if this account number is a blocked account in my name or not? Citing the reason that I suspect that the landlord might have violated Art. 257e by putting my rental deposit in his own private account? With all the banking secrecy laws here I can imagine that the bank might ignore this request or ask for an official police investigation or something like that before they say anything about any account... Has anyone done that?

Lawyer up? It can get expensive quickly I imagine. There are probably no chances of recouping my legal costs even if I "win"? So I'll have to cough up potentially multiples of the deposit. I bet lawyers here charge 500 CHF/hour or something obscene like that. I'm a man of principle, but I'm not a fool.

Passive measures:

I can wait and hope for the best...

I already have 3rd party liability insurance (which was also valid before I moved out) in case he starts fabricating "damages" claims, although it's been more than a month, I doubt you can just do that after so long as a landlord?

I can join the mieterverband? Question is how useful they really are, especially for expats. Not sure which mieterverband I should join too - I live in a different canton now. I guess it's the one where the apartment is located?

I can get legal protection insurance, just to be on the safe side. For example AXA conditions state that

"Coverage is available for legal cases whose triggering event and the need for legal protection arose during the period of coverage...The triggering event is defined as the first actual or alleged breach of the law or breach of contract." ( source ). I guess nothing strictly illegal has happened yet, even though the lease itself was ended when I was not insured with this insurance. So probably they would cover this if necessary...

How do you see this? What would you do in this case? Did I miss something or misunderstood the common practices? Getting the deposit back seems to be an "evergreen" topic, so apologies if I didn't search the forum enough, I tried.

2
The standard algorithm is: send him a registered letter demanding repayment in full; make sure to give a specific, reasonable deadline when you expect the money back e.g. 2 weeks (actually it's not strictly necessary, but common courtesy and tracking# is usually cited as reason in next step). If money doesn't show up, follow up with a Betreibung. If he doesn't file objection (Rechtsvorschlag), Beitreibungsamt will take care of extracting the money from him (if he has any) for you and wire it to you eventually. But if he does file objection, you have to take him to the court - the court will examine the case and eventually if they agree with your side of the story, they would order Beitreibungsamt to proceed with money extraction like in the other case.

Pointless in your situation at the moment, yes, but not entirely without a point - during your rental period you could've used that law to force him to put your money into the locked bank deposit in your name, why didn't you do it?

If the account is not in your name then it's not properly parked money according to the law. But it doesn't matter now.

You're overthinking it.

The bank and police will ignore you, this is not a criminal matter.

Without a protocol it's extremely unlikely he would be able to prove any damages in due process.

3
Thank you for the reply and advice, kerneltrick.

So you suggest going the debt enforcement route directly then? Forego/skip the Arbitration board/Schlichtungsbehörde? Based on mietrecht.ch it would mean the one in Wengistrasse 30, Zurich in my case. Are they considered a waste of time in general? I would rather not go to a court at all of course (even if the arbitration board proceedings are free). Especially during a pandemic peak, so I see the benefits of just going the debt collection route - I just want to make sure it's not considered a nuclear option. I.e. whether one is expected to first exhaust options in the Arbitration board and only then get debt collectors on the case.

Good point. I only learned about the details of this type of account recently. I was lulled by the fact that everything seemed to be by the books with the landlord so far. He registered me officially at the address, never requested payment in cash/off the record, used 2 accounts for deposit and rent. I thought that deposit account actually was the Mietkautionskonto (since it was separate from rent). I definitely would see red flags if the exact same account number was being requested for deposit and rental payments (and likely refused it and found someone else). I geniunely thought it was an account he already opened exclusively for this deposit purpose, so it surely must've been alright/legal. I didn't know that I should actually be contacted by the bank to make sure that I'm the co-owner of the account and sign some papers (I guess that's how it goes normally?). The handover itself went well too. It just strikes me as odd that someone suddenly changes like that and starts playing games with other people's money. I was always polite and accomodating so far - I don't want him to claim harassment or something like that in case this ever escalates.

Well, maybe, but it's a valid question I think. How does one keep track/prove that something specific was sent via registered mail? If you send the only original copy and the recipient just burns it before/after reading for example? How can you prove that you sent them e.g. a repayment demand for 4000 francs and not a gift card from IKEA worth 500 francs?

I just hope that he actually pays soon and none of this would be necessary. However, I have to know my options and keep the powder dry.

4
I agree that the debt collection is the way to move forward. You aren't paying rent anymore, the only matter in dispute is the deposit which the landlord is holding onto personally. You have proof what the money was paid for and to whom.

As long as tenants continue to sign rental contracts they don't understand and therefore do not read the clause about how the rental deposit is to be held, this will continue to be a problem. It happens more often than you think. Sometimes as the timing is tight deposits are paid into an account temporarily. As soon as the correct account is opened, the deposit should be moved. Property management companies do this. It's the private owners who usually don't.

5
And what **exactly** did you want from them? I don't see how they can help you, they don't have the power to resolve/enforce debts - that's court and Betreibungsamt matter. During your rental relationship they could've helped by telling you to park the rent with them in a kosher, non-contract-breaching way. That'd give you some negotiation powers with the landlord because he wouldn't see the money until he complied. But now your rental relationship ended, they can't help you. You are left with the simple legal matter of one party owning money to another party, and apparently refusing to pay up. That's Betreibugsamt jurisdiction.

6
Usually this just doesn't come up in court cases at all

But I suppose you can video tape you putting the letter into envelope with prepaid tracking#. Or ask the guy to produce the letter he claims to have received, if it's different than what you've sent and has your signature this is technically forgery, a criminal offense and you can get the cops involved. This is Art 251 StGB, up to 5 years...

7
I only found out about their existence via this article on homegate.ch :

That's why I mentioned them. Trying to get all information I can about this subject.

8
Hi

I read this post with a lot of attention as I find myself in the exact same situation...

Temporary serviced apartment in central Zurich. 2 months of rent were required as “deposit” which was put in a different bank account from the bank account used for paying rent, but the deposit bank account was not in my name.

Everything went very well, and the lady was very nice until.. I asked for my deposit after moving out.

She said “30 days” but has since gone totally silent (for more than 3 months..), blocked my number and stopped replying to e-mails.

I suspect this is a well-oiled machine as most of her clients are expats who come to Switzerland for a limited period for work. Those flats are paid for by companies and I suspect no one really bothers for what is seen a relatively “small” amounts (in my case, this is almost 6k CHF and I am still in Switzerland so won’t let go)

I know this post is old and I hope you got to the bottom of it. If that’s the case, how ?

What amazes me is that this lady seems very “legit” in a sense that her rental company is declared and has a commercial register number.

So far I have sent numerous e-mails. The last e-mail is stating that I will engage legal procedure but at this stage, I just don’t really know how to proceed on this and I am obviously worried about the costs it could incur.

I would love to know if this has been resolved on your side and how ?

Thanks

9

Send a registered letter (not e-mail) telling her to return your deposit by a set date otherwise you will take her to court to reclaim your deposit.

10
When did you move out of this apartment?

For future reference: the Mietkautionsdepot must be put in a special bank account in YOUR name. It is against the law for the landlord to put the deposit into their own private bank account and you would've been able in this case to deduct the deposit from future rent payments after informing them via registered mail ( https://www.mieterverband.ch/mv/miet...rueckgabe.html )

When the account is in your name and the landlord has not started any legal procreedings, you can just contact the bank 1 year after move out date and they will release the funds to you (I had to do this once with a chaotic private landlord).

I highly recommend becoming a member of the Mieterverband and asking them for advice. If you sign up now and pay for next year, you get the membership for the rest of 2023 for free. They usually offer advice via phone and in-person and can hopefully tell you how to navigate without losing too much money on legal fees. I would assume this is a case for the Schlichtungsbehörde.

11
This. Stop with emails. Registered letters carry far more weight. And point out the fact that holding the deposit money in any account other than the special account mentioned above is illegal, and you will start court proceedings if the money is not returned within 30 days.

12
thanks for your comments

Will do it this week but feel like this has a very low chance of leading to anything.. let's see

13
I moved out more than 3 months ago now and initially, the timeframe for deposit payment was 30 days.

My biggest issue now is that it feels like this person has disappeared from the face of earth, She is between London, Ibiza and Zurich and I am assuming this will be her way of dodging the bullet and never receiving the registered letters.

14
Registered letters are considered delivered a certain time after they become available for pickup, it is the landlord's problem if they don't collect their post.

15
This.

Also, you can file a betreibung; which if they don't contest, is awarded in your favor...

People have a tendency to suddenly appear and respond when these are filed.

16
very helpful. thanks