Votes: “An owner has the right to know who lives in his home”

Subletting and own needs –

“An owner has the right to know who lives in his home”

Director of a real estate agency which manages the property of private owners, Fabien Anex defends a pragmatic double yes to the votes of November 24. Interview.

BotTalk

• Supporters of a yes to the revisions of tenancy law speak of “technical” changes.
• If the first text passes, an owner will be able to refuse a sublet exceeding two years.
• The other revision wants to replace “urgent” with “important and objective” in the conditions allowing termination for own good.
• These new laws should clarify the legal framework and facilitate legal processes.

Opponents claim that this double revision of tenancy law is a hidden strategy to increase rents. On a scale of 1 and 10, how true is this?

I wouldn’t even say 1.

Frankly? No real estate management company will benefit from it?

Opponents portray this election as an attack by the ugly real estate lobby. But in fact, these two revisions are above all technical. This involves clarifying the context of subletting and the possibility for an owner to recover his property. These new provisions will apply to specific cases. Don’t expect any upheavals.

But we are weakening the position of tenants. No?

That’s not my feeling. Today, there is a gap between what the law says and how case law applies it. Specifying each person’s rights and duties does not mean weakening one side or strengthening the other.

The first object wants to tighten the rules for subletting to fight against abuse. What abuse are we talking about?

Subletting is permitted in law and will remain so in the future. This provision of tenancy law allows a tenant who is temporarily absent – ​​to do an Erasmus or because he is sent abroad for work – to find his accommodation on his return. In practice, we observe that this temporary can last. Because the tenant found a new job or because he got into a relationship. But when the owner wants to terminate the lease, he comes up against case law, which states that it is enough for the tenant to show that he does not rule out returning for his subletting to be authorized. With the revision of the law, a sublet may be refused if it is longer than two years. Which corresponds to the notion of “temporary”.

But what is the problem with a sublet being prolonged?

If everything goes well, nothing. But let’s take the example of an owner who lives in a small building, and one of the tenants, a student, sublets his studio. Every six months, this owner sees a new sub-tenant arrive. Some are noisier than others, and he regularly has to come up to say stop being noisy after 10 p.m. Currently, this landlord will have difficulty terminating the lease due to legal doctrine. However, everyone can understand that an owner wants to know – and choose – who lives in their home.

Are we able to assess the extent of the problem?

We have to be honest, it’s marginal. But some cases can take on large proportions.

That’s to say?

I take a very concrete case that I took from my predecessor in 2003, and which still continues today. This is a person who lives in Châtel-Saint-Denis, she has her papers and her family there. However, she has kept an apartment in Lausanne which she has sublet from year to year for more than twenty years. When the owner wanted to terminate his lease, the conciliation commission ruled against him. It was enough for the tenant to say that she did not rule out returning to Lausanne for the case to be decided in her favor.

Will this revision help fight Airbnb?

I don’t believe this argument. Today, it is already possible for an owner to terminate a lease if he notices that his tenant is illegally using his property to put it on Airbnb. The new regulations won’t change much.

The other object concerns the possibility for an owner to recover his property. Currently, this need must be “urgent”. In the new law, this adjective is replaced by “important and objective”. Will two words change anything?

I myself don’t understand why we’re asking the people to have their say, when it won’t change anything for most people.

But then, why did you open this site?

This is again a technical and jurisprudential question. Take an apartment located in a PPE, not far from the Lausanne university campus. Its owner would like to put his son there, who is at the gymnasium and would then like to study. The latter would not begin for two years, which already poses a problem in meeting the “urgency” requirement formulated in the law. Even if his request is accepted to terminate the lease, what will happen? The tenant will be entitled to extensions, which can be up to three or four years. During this time, the son will find another option to start his studies in Lausanne. And let’s imagine that when the owner finally gets the keys, his son is doing a year’s exchange in Fribourg, the tenant will be able to criticize a spurious reason for the termination of his lease. This demonstration clearly shows that the “urgent” character contained in the law no longer means anything.

Does not being able to get your accommodation back happen often?

It’s very rare. In my career, I have had to manage three cases. But for those who are concerned, it can quickly turn into a nightmare. And it is not the large authorities or pension funds that are concerned – use for their own property is almost impossible for them – but the small owners, who discover that they will not be able to use for years a property which they belongs.

There is one point that I don’t understand. If the tenant does not want to leave, the legal machine will go into overdrive, regardless of the term used in the law. No?

Today, the urgency that is put in the text of the law loses all its meaning in practice. By talking about an objective and important need, we will be more in line with reality. This will simplify practice, but also legal procedures. The rules will be clear to everyone. But in the end the processes will remain the same and, if there is a conflict, the judge will always have to weigh the interests of each party.