Eviction of a tenant must be carried out in summary proceedings if a clear case exists

Facts

The case concerns the eviction of a tenant, which was assessed by the lower courts in summary proceedings under Art. 248(a) in conjunction with Art. 250 of the Swiss Civil Procedure Code (CPC). The appellant argued that this was contrary to federal law, as the eviction of a tenant is only possible in summary proceedings under Art. 248(b) in conjunction with Art. 257 CPC if a clear case exists.

The lower court relied on a cantonal provision (§ 3(f) VVzOR/SZ) that generally assigns the eviction of a tenant to the summary proceedings under Art. 248(a) CPC. However, the Federal Supreme Court sees this as a violation of the derogatory force of federal law.

Considerations

According to the legislative history of the CPC, the legislator intended that the eviction of a tenant is only possible in summary proceedings under Art. 248(b) in conjunction with Art. 257 CPC if a clear case exists. A cantonal provision that generally assigns this to the summary proceedings under Art. 248(a) CPC is therefore…