Facts
Parties and contractual relationship: The complainant, a public limited company (tenant), rented commercial premises in Zurich from [B.] (landlord). The lease agreement dated 23 December 2017 provided for an annual gross rent of CHF 232,000.--. The landlord is the sole director of the tenant and her husband.
Compulsory administration and seizure: Enforcement proceedings were initiated against the landlord, whereupon the competent enforcement office Meilen-Herrliberg-Erlenbach seized the property by way of mutual legal assistance. The City Mayor's and Enforcement Office Zurich 1 (respondent) took over the compulsory administration of the property and instructed the tenant to pay the rent due from October 2021 to the enforcement office. On 15 March 2022, the enforcement office reminded the tenant of outstanding rent for the months November 2021 to March 2022 (CHF 96,670.--) and set a 30-day payment deadline. In a letter dated 19 April 2022, the tenant was again reminded and the termination of the lease agreement pursuant to Art. 257d para. 2 CO was threatened if the rent was not paid. The tenant disputed the payment arrears and relied on deferral and remission agreements.
Termination and legal dispute: With an officially approved form dated 22 July 2022, the enforcement office terminated the lease agreement extraordinarily as of 31 August 2022 due to payment default. The tenant challenged the termination before the Conciliation Authority Zurich, which granted the enforcement office leave to sue. The Zurich Tenancy Court upheld the enforcement office's action for a declaration of the validity of the termination and eviction of the property with a judgment dated 20 December 2023. The Higher Court of the Canton of Zurich dismissed the tenant's appeal with a judgment dated 16 August 2024.
Appeal to the Federal Supreme Court: The tenant filed an appeal in civil matters and requested the annulment of the judgments of the Higher Court and the Tenancy Court as well as the dismissal of the enforcement office's action. In the alternative, it requested that the case be referred back to the lower court for taking of evidence. The respondent requested the dismissal of the appeal.
Considerations
1. Admissibility of the appeal The Federal Supreme Court examines whether the procedural requirements for an appeal in civil matters are met, in particular the amount in dispute (Art. 74 para. 1 lit. a FSCA). It generally admits the appeal, but not the request to set aside the judgment of the Tenancy Court, as this is not a lower court within the meaning of Art. 75 FSCA. The appeal must be sufficiently substantiated and address the reasoning of the lower court. The complainant has not sufficiently substantiated its criticism of the lower court's reasoning, which is why the Federal Supreme Court takes the lower court's findings of fact as binding (Art. 105 para. 1 FSCA).
2. Power to litigate of the enforcement office The complainant argues that the enforcement office, as a representative in litigation, has no power to litigate pursuant to Art. 102 para. 3 DEBA. The lower court dismissed this objection, stating that the enforcement office, in the context of compulsory administration of the seized property, may act both as a representative in litigation and as the legal representative of the landlord. The complainant only challenged the main reasoning of the lower court in its appeal and did not object to the independently supporting subsidiary reasoning. Subsequent criticism in the reply is inadmissible and will not be considered. Therefore, the appeal concerning the alleged violation of Art. 102 para. 3 DEBA cannot be admitted.
3. Payment default and termination pursuant to Art. 257d CO The complainant disputes having been in payment default and relies on deferral and remission agreements. The lower court correctly held that such agreements…