Termination for own use not abusive; no extension absent hardship given insufficient search efforts

Facts

The parties disputed the termination of a tenancy relating to a 6-room single-family house in [U.] and an extension. The tenants [A.] and [B.] (plaintiffs, appellants) had concluded the lease on 24 April 2010 with the landlords [C.C.] and [D.C.] (defendants, respondents) or their parents; the monthly rent was CHF 3'300.--.

The landlords terminated the tenancy by an officially approved form dated 11 June 2019, effective 30 June 2020, on the grounds of 'own use by [C.C.] and family'. The three-month notice period was thus not observed, since the termination was already dated 11 June 2019.

By action of 2 March 2020, the tenants requested before the Winterthur Tenancy Court that the termination be declared invalid or set aside, alternatively an extension by four years. The Winterthur Tenancy Court dismissed the action by judgment of 18 December 2020. The Zurich Cantonal High Court, II. Civil Chamber, upheld the dismissal by judgment of 19 April 2021 (NG210002-O/U). It rejected an abusive termination, namely a retaliatory termination (Art. 271a para. 1 lit. a CO), a termination for modification of terms (Art. 271a para. 1 lit. b CO) and a termination during a protected period (Art. 271a para. 1 lit. e CO), and found the need for own use plausible. Due to insufficient search efforts, there was moreover no hardship within the meaning of Art. 272 CO.

By civil law appeal, the tenants requested the annulment of the lower court's judgment and the invalidation of the termination, alternatively an extension by four years, subsidiarily the remittal to the lower court. No responses were requested.

The main points in dispute were: the violation of the right to be heard and of the right to produce evidence (Art. 29 para. 2 Cst., Art. 152 CPC), as well as of the social investigation principle (Art. 247 para. 2 lit. a in conjunction with Art. 243 para. 2 lit. c CPC) through the waiver of party and witness examinations; the abusiveness of the termination (Art. 271 and Art. 271a CO); and the extension of the tenancy (Art. 272 ff. CO).

Considerations

The Federal Supreme Court examined the admissibility of the civil law appeal (Art. 72, 74, 75, 90, 100 FSCA) and entered into the matter subject to a sufficiently reasoned submission (Art. 42 para. 2, Art. 106 para. 2 FSCA). It held that it applies the law ex officio but only examines the complaints raised; for fundamental rights complaints and cantonal law a qualified duty of complaint applies. The findings of fact are binding unless they are obviously incorrect (arbitrary) and decisive for the outcome (Art. 105, 97 FSCA). New facts and evidence are only admissible insofar as the lower court's decision gives rise to them (Art. 99 para. 1 FSCA).

On the complaint of a violation of the right to be heard and of the right to produce evidence, the Federal Supreme Court stated that Art. 29 para. 2 Cst., Art. 8 CC and Art. 152 CPC do not prescribe to the court the means by which it establishes the facts; anticipatory assessment of evidence is permissible. The social investigation principle only establishes an increased duty to ask questions; represented parties must themselves substantiate the facts (Art. 55 para. 1 CPC). The lower court had rightly qualified the tenants' assertions as too general, because the tenants had presented neither the questions for the party and witness examinations nor concrete individual facts. A violation of the right to be heard or of the substantiation requirement therefore did not exist.

On the abusiveness of the termination, the Federal Supreme Court held that an ordinary termination requires no special reason; however, it is challengeable if it violates good faith (Art. 266a para. 1, Art. 271 para. 1 CO), in particular if it occurs without an objective, serious and worthy-of-protection interest. The ground for termination is a question of fact; the recipient must prove the abusiveness, but the terminating party must substantiate the ground and submit documents (Art. 271 para. 2 CO). The lower court rightly rejected a retaliatory termination, since the email of 26 September 2016 did not evidence a refusal of defect rights and later defect notices were made after the termination. Nor was there a protected period or a termination for modification of terms. The appellants had not raised the arbitrariness of the evidentiary assessment in a sufficiently substantiated manner, but merely set out their own view; no further consideration was given to it.

On the extension (Art. 272 CO), the Federal Supreme Court held that the purpose of the extension is to give the tenant more time to search for new premises. Hardship exists only where circumstances make it impossible for the tenant to find a replacement property within the remaining time; ordinary consequences of termination are not sufficient.…