Facts
The appellant, an investment foundation, had entered into the existing lease agreements with the respondent 1 (a public limited company) as the new owner of a property. Further lease agreements for parts of the property were concluded between September 2016 and May 2020. The monthly gross rent amounted to CHF 17,924.21 from October 2021 onwards. The respondent 2 (another public limited company) was also present in the leased premises, presumably due to an unauthorised sublease.
The appellant placed the respondent 1 in default with two reminder letters dated 10 November 2021 (arrears of CHF 20,148.42 for October/November 2021) and 10 December 2021 (arrears of CHF 17,924.21 for December 2021), with a warning of extraordinary termination. With official termination notices dated 29 March 2022, the appellant terminated the lease agreements as of 30 April 2022.
On 24 June 2022, the appellant applied to the Commercial Court of the Canton of Zurich for the eviction of both respondents in summary proceedings under Art. 257 CPC. The respondents did not submit any statements. With a ruling dated 8 August 2022, the Commercial Court refused to proceed with the eviction application, as it did not consider the facts to be clear and the legal situation to be unambiguous. The appellant appealed against this ruling to the Federal Supreme Court.
Considerations
The Federal Supreme Court first examined the admissibility of the appeal. The contested ruling of the Commercial Court is a final decision of a single cantonal instance within the meaning of Art. 75 para. 2 lit. b FSCA, against which an appeal in civil matters is admissible regardless of the amount in dispute (cf. BGE 139 III 67 para. 1.2).
On summary proceedings under Art. 257 CPC: The Commercial Court denied the existence of a clear case, as it had doubts about the accuracy of the appellant’s presentation of the facts. In particular, it doubted whether the respondent 1 had not paid the outstanding rents for October/November 2021 within the set deadline. These doubts were, however, unfounded. The Federal Supreme Court clarified that the appellant’s presentation of the facts remained undisputed within the meaning of Art. 257 para. 1 lit. a CPC and that there were no significant doubts within the meaning of Art. 153 para. 2 CPC. The Commercial Court should therefore have based its decision on the undisputed assertion of the appellant that the respondent 1 had not paid the rents on time. The facts were clear in this regard.
On the alleged bad faith of the terminations: The Commercial Court also denied a clear legal situation, as it considered the terminations to be too late and referred to an earlier judgment (4A_366/2008), in which a termination three weeks after the deadline had been deemed to be in bad faith. The Federal Supreme Court rejected this argument. Although a termination for rent arrears may contravene good faith if it is issued too long after the payment deadline, such a defence must be raised within the limitation period under Art. 273 CO. As the respondents had not done so, the objection of bad faith could no longer be raised in the eviction proceedings. Furthermore, the appellant’s waiting period of two…