Admissibility of Appeal against Provisional Measures in Tenancy Law

Facts

The cooperative [X.] (appellant) is a tenant of commercial premises on the first floor of [A.Y.] in [L.] , which is operated by [Y. AG] (respondent). The quarterly rent amounts to CHF 108'621.--. The tenant claimed defects in the rented property. On 27 April 2012, it was authorized to deposit the rent due from July 2012. After unsuccessful mediation, the tenant filed a lawsuit with the Rent Court of Affoltern on 15 October 2012. Essentially, it requested the removal of defects and a reduction of the rent by 20% until the defects were removed. Accordingly, a decision was to be made on the use of the deposited rent. By application of 15 January 2013, the defendant subsequently requested the release of a total of 80% of the rent deposited so far and the limitation of the (future) rent deposit to 20% of the quarterly rent. The Rent Court granted the application by judgment of 22 May 2013.

The appellant challenged the judgment with an appeal to the High Court of the Canton of Zurich on 4 June 2013, which dismissed the appeal by judgment of 25 June 2013. The appellant then requested the FSCA to fully overturn the judgment of the High Court of the Canton of Zurich of 25 June 2013.

Considerations

The FSCA examines ex officio and with free cognition whether an appeal is admissible (Art. 29 para. 1 FSCA). Decisions on provisional measures are only considered final decisions within the meaning of Art. 90 FSCA if they are made in an independent procedure. Independently served measure decisions that are issued before or during a main procedure and only remain in effect for the duration of the main procedure are considered intermediate decisions within the meaning of Art. 93 FSCA.

The appellant argues that a cantonal final decision on a tenancy law measure regarding the provisional release of deposited rent is being challenged, making the appeal in civil matters admissible according to the FSCA's judgment 5A_198/2012 of 24 August 2012. However, the FSCA has not qualified a provisional measure, by which a part of the rent deposited by the tenants was released in favor of the landlord during a pending main procedure, as an appealable final decision in the sense of Art. 48 para. 1 FJA.

The FSCA examined whether…