Is it legal to sublet your apartment on Airbnb in Switzerland without the owner's consent?
No, it is illegal to sublet an accommodation on Airbnb without the landlord's explicit consent. According to Art. 262 CO, the tenant must obtain the owner's approval. In the event of unauthorized or lucrative subletting, the landlord can terminate the lease prematurely.
The legal framework of subletting in Switzerland: between freedom of contract and abuse of rights In Switzerland, subletting is governed by Article 262 of the Code of Obligations (CO), which establishes a fundamental principle: the tenant may sublet all or part of the property with the landlord's consent. However, this consent can only be refused for specific reasons: if the tenant refuses to disclose the terms of the sublease, if these terms are abusive compared to those of the principal lease, or if the subletting causes major disadvantages for the landlord. The rise of Airbnb has nevertheless prompted the courts to clarify these limits, particularly regarding the lucrative nature and the concept of "primary residence."
A strict regulatory framework in the face of professionalization Subletting via platforms like Airbnb should not be confused with traditional subletting to a student or a friend during a temporary absence. Swiss law now clearly distinguishes residential use from commercial use.
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The requirement of transparency and consent The tenant is obliged to inform their landlord of their intention to sublet. This information must include the names of the subtenants (which is technically complex with Airbnb where guests constantly change) and the financial terms. If the tenant fails to do this, they risk lease termination. Recent jurisprudence tends to consider the landlord's refusal as legitimate if the subletting takes on a systematic and hotel-like character, as this alters the purpose of the premises.
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The concept of an abusive rent This is the main point of friction. Article 262 para. 2 lit. b CO states that the landlord can refuse consent if the terms of the sublease are abusive. In Swiss practice, a tenant must not make a substantial profit at the owner's expense.
A markup of 10% to 20% on the net rent is generally tolerated to cover the depreciation of furniture and additional costs (internet, electricity, platform fees).
Beyond this, the sublease is considered lucrative and abusive, paving the way for immediate termination of the lease for "just cause."
- Major disadvantages for the landlord The constant turnover of tourists in a residential stairwell can constitute a "major disadvantage." Noise pollution, the feeling of insecurity experienced by other co-owners, and increased wear and tear on common areas are reasons regularly accepted by the courts to ban Airbnb activity.
Cantonal specificities and tourist taxes Beyond rental law (federal level), each canton applies its own administrative rules.
The risks faced by the tenant-host The tenant who acts as a hotelier without respecting the rules faces severe consequences:
Extraordinary termination: In the event of a serious breach of the duty of care or lucrative use of the sublease, the landlord can terminate the lease with 30 days' notice for the end of a month.
Restitution of profit: The owner can demand the restitution of unjust enrichment (the profits made through abusive subletting).
Administrative fines: In cantons like Geneva, fines for violating the LDTR can reach six-figure amounts.
Conclusion for investors and owners For a landlord, vigilance is essential. It is recommended to insert specific clauses in lease agreements explicitly prohibiting subletting via digital platforms or subjecting it to prior, renewable written consent. For the investor, acquiring condominium lots (PPE) for Airbnb use requires careful verification of the co-ownership's Administration and Use Regulations (RAU), as more and more co-ownerships are now banning hotel-style rentals.
