As already explained in the previous case [2022/5], the disposal of a rent deposit account requires either the consent of the tenant and the landlord or a legally binding order for payment or a court decision. One year after termination of the tenancy, however, the tenant is free to dispose of the rent deposit independently if the landlord has not legally asserted a claim against the tenant arising from the tenancy within this year. In the present case, the client invoked this third possibility. According to his account, he had to live in very modest circumstances due to an illness and was in urgent need of the money.

When he contacted the bank about the payment of the rent deposit one year after the end of the tenancy, the bank gave the landlord ten days to explain whether he had taken legal action against the tenant within the statutory period. The landlord claimed to have claims against the tenant. The bank then presented the tenant with a balancing form already signed by the landlord, according to which the entire deposit was to be transferred to the landlord.

However, the landlord had not been able to demonstrate to the bank that he had taken legal action against the tenant within one year of the termination of the tenancy. This requires more than just a letter from the landlord with a claim against the tenant. At a minimum, the landlord must be able to show a debt collection or legal action against the tenant. It is up to the landlord to provide such evidence to the bank when the bank informs him of the tenant’s request for payment. As no such proof was provided, the tenant did not agree to the payout to the landlord and insisted that the legal conditions for his sole disposal of the amount have been fulfilled.

The bank did not respond to this and, after the tenant’s complaint, again submitted a balancing form pre-signed by the landlord, according to which more than half of the deposit should have been transferred to the landlord. The tenant refused this as well and reiterated his legal position. When he complained to the bank again about five months after the first visit, the bank again contacted the landlord and gave him the third time the opportunity to explain that he had legally asserted claims against the tenant within the statutory period of one year after the end of the tenancy.

The tenant then submitted the case to the Ombudsman. The Ombudsman contacted the bank. He understood that the bank had given the landlord the opportunity to show, if necessary, that he had legally asserted claims against the tenant in due time and that it was therefore not possible for the tenant to dispose of the rent deposit on his own. However, if the landlord is unable to show this immediately with the necessary documents, the deposit must be paid out to the tenant without further ado if the tenant demands it. It should be possible to clarify such a case at short notice. In the Ombudsman’s view, contacting the landlord several times over a longer period is neither necessary nor appropriate. He asked the bank to settle the case promptly, taking into account the considerable and unnecessary expense caused to the tenant in this case. The bank paid the tenant the deposit without further delay and sent him two Reka cheques of CHF 10 each to cover the postage costs he had claimed. The case could be closed on this basis.