Provisional registration of a builder's lien: Insufficient substantiation of the contract for work and the claim for remuneration, appeal dismissed

Facts

Parties and instances: [A. AG] (appellant, subcontractor), represented by attorney Dr. Christoph Thurnherr, against [B.] (respondent, property owner), represented by attorney Lukas Weinhappl. Prior instances: Single judge of the District Court of Dietikon and the Higher Court of the Canton of Zurich, II. Civil Chamber (judgment of 11 March 2021, LF200067-O/U).

Subject matter: Builder's lien (Art. 837 para. 1 no. 3 CC, Art. 961 CC).

Facts: On 29 September 2020 the appellant applied to the District Court of Dietikon for provisional or superprovisional provisional registration of a builder's lien in the amount of CHF 115'273.40 plus interest at 5% on the respondent's property in [V.] (ZH). As a subcontractor, it relied on a contract for work dated 25 September 2019 with [D. AG] as well as various supplementary agreements. The last works relevant for calculating the time limit under Art. 839 para. 2 CC were allegedly performed on 7 July 2020 (dismantling of the scaffolding and stripping of the balcony formwork) and on 21 September 2020 (clearing of the construction site installations). At the main hearing of 6 November 2020 it requested a time limit of three months for prosecuting the claim by action.

Prior instances: The District Court dismissed the application and ordered the deletion of the superprovisional entry (judgment of 10 December 2020). The Higher Court confirmed this by judgment of 11 March 2021.

Proceedings before the Federal Supreme Court: By appeal of 14 April 2021, the appellant requested that the judgment of the Higher Court be set aside and the provisional registration be ordered, or alternatively that the matter be remitted. The President of the II. Civil Law Division granted the appeal suspensive effect on 6 May 2021. No second exchange of written submissions was ordered.

Key question: Whether the appellant sufficiently substantiated and made credible the contractually agreed works as well as the existence and amount of its claim for remuneration.

Considerations

Admissibility: The decision concerns a civil matter of a pecuniary nature (Art. 72 para. 1 FSCA) with an amount in dispute above CHF 30'000.-- (Art. 74 para. 1 lit. b in conjunction with Art. 51 para. 1 lit. a FSCA). It is a final decision (Art. 90 FSCA) of a higher cantonal court (Art. 75 FSCA). The appeal is therefore admissible.

Type of appeal and principle of complaints: Decisions on the provisional registration of builder's liens are considered provisional measures (Art. 98 FSCA). The appellant may therefore only complain of a violation of constitutional rights, whereby the strict principle of complaints (Art. 106 para. 2 FSCA) applies. Arbitrariness (Art. 9 Cst.) exists only where not only the reasoning but also the result is untenable.

Burden of substantiation and establishing credibility: The lower court correctly held that the appellant did not sufficiently specify the content of the contract for work (which merely refers generally to 'masonry work'), the agreed works and the alleged supplementary agreements. A preliminary question for the uniform start of the time limit under Art. 839 para. 2 CC could therefore not be assessed. According to the Federal Supreme Court, the reduced standard of proof of establishing credibility (Art. 961 para. 3 CC) does not alter the parties' duty to assert and substantiate facts. Establishing credibility does not dispense with the requirement of a sufficiently detailed presentation of facts, since the court must first obtain certainty as to which facts require evidence. Missing assertions must be supplied in the first submission in summary proceedings, even if no second exchange of written submissions takes place.

Impermissible novel allegations and duty to ask questions: The lower court classified the submissions made after the original application and its supplement as improper novel allegations that could have been raised earlier with reasonable diligence. The court's duty to ask questions (Art. 56 CPC) toward parties represented by counsel must be exercised with the greatest restraint and may not compensate for procedural negligence. The Federal Supreme Court found no arbitrary application of Art. 56 CPC, as the appellant did not show why the respondent should have accepted persistent follow-up questioning.

Duty to give reasons and right to be heard: The authority is not required to address every submission (Art.…