Eviction of tenants from the landlord’s perspective

In general

If a tenant does not vacate the rental property after a valid termination of the lease, landlords often take matters into their own hands by, for example, changing the locks. However, such measures are unlawful and frequently result in civil and criminal proceedings.

Therefore, the landlord’s claim for the return of the rental property must be enforced through legal action and presupposes that the tenant remains in possession of the property without a right to use it. Depending on the specific facts and legal situation, the procedural enforcement of this claim must be approached differently.

Clear Cases

If both the legal situation is clear and the facts are undisputed and can be proven immediately, the eviction claim can be enforced through so-called legal protection in clear cases pursuant to Art. 257 of the Swiss Civil Procedure Code (CPC). The advantage is that the claim can be enforced in summary proceedings, meaning that the otherwise mandatory conciliation proceeding is not required. Another advantage, besides the speed of the proceedings, is the limitation of evidence to documentary evidence.

The disadvantage is that tenants may, depending on the circumstances, raise substantiated objections, thereby preventing the facts from being considered undisputed and immediately provable. If the facts are not clear (“liquid”), legal protection in clear cases cannot be granted.

Accordingly, this option is typically available to landlords when there is a formally valid termination and no challenge to the termination or request for extension is pending.

Simplified Proceedings

In cases where the facts are unclear such as when it is disputed whether the termination was lawful – the eviction must generally be carried out under the simplified procedure pursuant to Art. 243 para. 2 lit. c CPC, regardless of the amount in dispute, provided that issues of protection against termination or extension are involved. Compared to legal protection in clear cases, the simplified procedure involves a more comprehensive clarification of the facts, with increased judicial involvement.

Enforcement of the eviction decision

Whether under legal protection in clear cases or the simplified procedure, the court may, pursuant to Art. 236 para. 3 CPC, order the compulsory enforcement of a legally binding decision upon request. In the case of evictions from rental properties, this involves clearing the property pursuant to Art. 343 para. 1 lit. d CPC.

However, there are significant cantonal differences regarding the actual enforcement process. If the tenants refuse to vacate the property even after prior notice of eviction, police assistance is usually required in most cases.

Conclusion

Through legal protection in clear cases, landlords can often achieve eviction significantly faster than through the simplified procedure. However, this requires that the lease has been effectively terminated. Even minor formal defects in the termination can considerably delay the enforcement of the claim for restitution.