Non-entry on appeal in civil matters for lack of amount in dispute in eviction from a loan for use; subsidiary constitutional complaint dismissed

Facts

Parties and instances: The appellant ([A.] , represented by lawyer Peter Nideröst) occupies a terraced single-family house in Zurich. The respondent ([B. GmbH] , represented by lawyer Dr. Silvan Hauser) acquired the property on 19 November 2019. The prior instances were the District Court of Zurich (single judge, Audienz) and the Higher Court of the Canton of Zurich, II. Civil Chamber.

Facts: On 10/19 August 2019, the appellant and the then owner [C.C.] concluded a contract designated as a 'loan for use agreement' concerning the interim use of the property. It stated that no rent was owed and that the transfer was free of charge; the appellant assumed the costs arising from use as well as ordinary maintenance. However, he paid CHF 200.-- monthly. In the purchase agreement of 19 November 2019, the loan for use agreement was transferred to the respondent pursuant to Art. 261 para. 1 CO. The latter gave ordinary notice on 30 November 2019 effective 23 December 2019 (or, according to interpretation, effective 30 December 2019) and extraordinary notice on 30 December 2019 with immediate effect.

Proceedings: On 10 January 2020, the respondent requested eviction before the District Court in proceedings under Art. 257 CPC (summary proceedings for clear cases). It was disputed whether a tenancy agreement (Art. 253 ff. CO) or a loan for use (Art. 305 ff. CO) existed. The District Court granted the request on 27 February 2020. The appellant challenged this on 14 April 2020 as 'appeal and, alternatively, complaint'; the Higher Court treated it as a complaint, granted suspensive effect and dismissed the complaint on 15 May 2020. The Higher Court initially set the amount in dispute at CHF 7,200.--, later at CHF 1,200.--; the District Court had assumed CHF 5,550.--.

Requests before the Federal Supreme Court: By appeal in civil matters and subsidiary constitutional complaint, the appellant requested the annulment of the Higher Court's judgment and non-entry on the eviction application, alternatively remittal. On 28 May 2020, the Federal Supreme Court ordered provisionally that enforcement measures be refrained from. The respondent requested dismissal of the application for suspensive effect. No responses were obtained on the merits.

Considerations

Final decision and amount in dispute (Art. 74 para. 1 FSCA): The judgment of the Higher Court is a final decision (Art. 90 FSCA) of a prior instance within the meaning of Art. 75 FSCA. An appeal in civil matters in property-related matters requires an amount in dispute of CHF 15,000.-- in employment and tenancy cases (lit. a), or CHF 30,000.-- in all other cases (lit. b). The parties disagreed about the amount in dispute. The decisive question is first whether a tenancy case exists; disputes arising from loan for use are not covered thereby. According to case law, it is indeed sufficient that the existence of a tenancy agreement is disputed (facts relevant to both sides), but this is to be departed from where the factual submission appears at first glance to be flimsy or incoherent.

Qualification as loan for use: In this case, there is clearly no tenancy agreement. Decisive is the question of remuneration: a loan for use is mandatorily free of charge (Art. 305 CO), while a tenancy is mandatorily remunerated (Art. 253 CO). The prior instances found that the parties expressly agreed 'no rent' and free of charge. The payment of CHF 200.-- monthly was a flat-rate contribution to costs pursuant to Art. 307 para. 1 CO, which does not affect the free-of-charge nature. The appellant's objections target the factual level and are not sufficiently substantiated (Art. 105 para. 2 FSCA); his complaint of violation of the right to be heard likewise criticises the establishment of facts. The contract designation and the nearly verbatim adoption of Art. 309 para. 2 CO additionally support a loan for use.

Amount in dispute and exclusion of appeal in civil matters: Since there is no tenancy case, the general threshold of CHF 30,000.-- applies. This is not reached regardless of the method of calculation. The calculation originally advanced by the appellant (CHF 200.-- x 12 x 20 pursuant to Art. 92 para. 2 CPC) was no longer maintained and is not decisive for the interest in eviction. In the absence of other indications of a higher amount in dispute (Art. 51 para. 2 FSCA), the prior instance's determination or the undisputed information remains applicable. A legal question of fundamental significance (Art. 74 para. 2 lit. a FSCA) was not sufficiently substantiated (Art. 42 para. 2 sentence 2 FSCA): the appellant showed neither considerable legal uncertainty nor a need for clarification. The objection that non-entry would result in procedural disadvantages likewise does not constitute an exceptional ground. The appeal in civil matters is therefore inadmissible.

Subsidiary constitutional complaint…