115 / 132
Service charges
• Service charges and other ancillary charges are only payable
by the tenant if this has been expressively agreed in the lease
agreement (in a specific list of the ancillary cost).
• Ancillary costs are costs for the maintenance of the lease
object; costs for repairs, renovation, or amortization cannot be
charged as ancillary costs.
• In practice, the tenant may however be made responsible for
the repair, renovation and replacement of tenant fittings that
do not form part of the lease object. More generally, although
not tested in court, the tenant may take over additional repair,
renovation or replacement obligations if these obligations
have specifically been taken into account when agreeing on
the rent.
Sale of property
• Commercial leases are automatically transferred to the new
owner in case of a sale of the leased property.
• The new owner has the right to terminate the lease as per
the next termination date provided by law in case of an
urgent own need of the premises (in which case the tenant
may claim damages from the former owner for the early
termination).
• To avoid to become liable for damages, the owner does
usually agree with the new owner in the sale and purchase
agreement that the new owner takes over the lease and
waives its right for early termination.
Transfer of lease
• The tenant may transfer the lease to a new tenant with the
written consent of the lessor which may only be withheld for
important reasons.
• In case the consent is given, the new tenant replaces the old
tenant as tenant; the old tenant remains jointly and severally
liable with the new tenant until the next contractual or
statutory termination date but not for more than two years.
Sublease
• The tenant may sublet the lease object in whole or in part to
a subtenant with the consent of the lessor; the lessor may
withhold the consent only if the tenant does not disclose the
terms of the sublease, if the terms are abusive or if the lessor
has substantial disadvantages from the sublease.
• The tenant remains fully liable for the performance of the
lease.
TAX
Direct acquisition of a property (asset deal)
• The acquisition of a property gives rise to notary fees, land
register fees and – in many cantons – real estate transfer
taxes. Notary fees, land register fees and – where applicable
– transfer taxes are calculated according to the tariffs of the
canton where the property is located. As the fees and taxes
may reach and even exceed 3% of the purchase price in some
cantons even for large investment properties, it is important
to check the costs in advance.
• The acquisition of real estate is in principle exempt from
VAT in Switzerland. The parties may however subject the
acquisition of real estate that is not exclusively used for
private purposes to VAT voluntarily, which is often done to
avoid negative VAT consequences on the side of the seller.
In this case, 8% VAT is payable on such part of the purchase
price (excluding the land price) that corresponds to the part
of the property that is used for VATable purposes.
Acquisition of shares in a company holding a property
(share deal)
• In case of a share deal, notary fees and land register fees do
typically not accrue; whether real estate transfer taxes accrue
based on a beneficial change of ownership varies from canton
to canton. In addition, securities transfer tax may become
payable, if a party qualifying as securities dealer is involved on
either side of the transaction.
Asset deal vs. share deal
• Even more relevant than differences in the transaction cost
mentioned above are differences in the profit tax or real estate
profit tax treatment. Federal profit tax as well as cantonal
profit tax in cantons that do not know a special real estate
transfer tax for legal entities are normally not triggered but
remain latent such that the buyer inherits an existing tax
burden. Whether the cantonal real estate transfer tax is
triggered in a share deal varies from canton to canton. The
parties do usually negotiate a compensation for taxes that are
inherited by the buyer in the range from 0 to 100%.
115
Investors Guide to Europe 2015