Comprehensive Review of the Termination Dispute by the Eviction Judge

Facts

The case concerns a tenancy agreement where the landlord [D.] prematurely terminated the sublease with the tenant W. [W.] subsequently initiated termination protection proceedings. At the same time, [D.] applied to the single judge in the summary proceedings for the immediate eviction of [W.] from the rental property.

The single judge did not enter into the eviction request due to illiquidity and also referred the termination protection proceedings to the conciliation authority. [D.] filed a nullity appeal against these orders, which was dismissed by the High Court of the Canton of Zurich.

[D.] then filed a constitutional appeal with the Federal Supreme Court.

Considerations

The Federal Supreme Court upholds the constitutional appeal. It states that under Art. 274g CO, the eviction judge is obliged to decide comprehensively on both the eviction request and the validity of the termination, regardless of the liquidity of the circumstances.

The Federal Supreme Court specifies that the eviction judge must examine the matter with full cognition and take it in hand regardless of its liquidity. He must clarify the facts ex officio and is…