Facts
Parties and instances: The appellants (six tenants) are tenants of an apartment in a development in Bülach, which belongs to the respondent, a stock corporation. The tenancies began between 2006 and 2009. The District Court of Bülach (Tenancy Court) essentially dismissed the action and awarded plaintiff 1 only Fr. 146.90. The Higher Court of the Canton of Zurich, II. Civil Chamber, dismissed the appeal by judgment of 15 March 2019.
Subject matter of the dispute: Reimbursement of ancillary cost back-payments for the accounting periods 2006/2007 to 2013/2014, determination of deception and partial nullity of the ancillary cost agreement, lack of clarity in the ancillary cost statements, hot water costs, and debt enforcement proceedings brought by the landlord.
Tenancy agreements: The agreements contained catalogues of ancillary costs (including water/sewage, refuse, common electricity, caretaking, service subscriptions, administrative costs). The agreement of appellants 5 and 6 referred to Art. 5 RRBPO and itemised hot water separately.
Lower court: The main claim for reimbursement on grounds of intentional deception was considered forfeited (Art. 31 para. 1 CO). The hot water costs were considered covered by the term 'water'. The item 'diverse Betriebskosten' was indeed insufficiently detailed, but the appellants had not substantiated their dispute; objections to individual items were rejected, and new amounts raised in the appeal reply were considered belated.
Before the Federal Supreme Court: The appellants requested that the action be upheld or, in the alternative, that the case be remitted for the taking of evidence. The respondent requested dismissal. The parties replied and duplicated without being invited to do so.
Considerations
Admissibility and scope of review: The amount-in-dispute threshold of Fr. 15,000.-- (Art. 74 para. 1 lit. a FSCA) is met. The Federal Supreme Court applies the law ex officio (Art. 106 para. 1 FSCA), but in principle only examines the complaints raised. The findings of fact of the lower court are binding unless they are manifestly incorrect (arbitrary) (Art. 105 para. 2 FSCA); for constitutional complaints the strict principle of complaint applies (Art. 106 para. 2 FSCA). The Court did not enter into the appellants' requests concerning the debt enforcement proceedings, as these were not substantiated in the appeal.
Legal nature of the claim and amendment of the action: The claim at first instance was understood both as an application for a declaratory judgment and as an application for performance. The complaint of an impermissible amendment of the action was not exhausted, as the respondent did not show where it had raised this in the cantonal proceedings (Art. 75 para. 1 FSCA; exhaustion of instances). Even if the Court had entered into it, the complaint would have been rejected.
Ancillary cost agreement and hot water costs: Under Art. 257a para. 2 CO, the tenant is only obliged to bear ancillary costs if this has been expressly agreed; costs not clearly agreed are borne by the landlord. The lower court had inferred from the wording 'water' and the tenants' conduct up to 2013 that there was an actual meeting of minds that hot water was owed. The complaints (arbitrariness, burden of proof, anticipatory assessment of evidence) did not satisfy the requirements of reasoning; new evidence (statements for 2008/2009) had not been raised in the cantonal proceedings. The Federal Supreme Court therefore proceeded on the basis that the ancillary cost arrangement of appellants 1-4 includes the hot water costs.
Clarity of the statement and acknowledgment of balances: Where a balance has been acknowledged, the claim for reimbursement is of an unjust enrichment nature; without acknowledgment, it is a contractual claim for which the landlord bears the burden of allegation and proof. The lower court assumed that there was no acknowledgment of the balance; the appellants did not sufficiently dispute this. Under Art. 4 para. 1 RRBPO and Art. 257b CO, the statement must be so clear that the tenant can recognise for which items and to what extent he is charged. The item 'diverse Betriebskosten' is manifestly insufficient. By contrast, the items caretaking and service subscriptions were not complained of as insufficient, or were regarded as sufficiently clear; for the service subscriptions, the individual contracts were named in the tenancy agreement.
Consequences of an insufficient statement: The right of inspection under Art. 257b para. 2 CO does not replace an insufficient statement, because without specification tenants cannot know which documents they need to examine. The lower court wrongly assumed that the tenants had not substantiated their defence through inspection of the documents. The letter of the respondent of 27 April 2016 is not sufficient, as no cost amounts were stated for the items. The plea of limitation was not raised in time in the cantonal proceedings (Art. 317 para. 1 CPC) and is inadmissible before the Federal Supreme Court (Art. 99 FSCA). As regards balances without acknowledgment, the claim for reimbursement for the item 'diverse…