Facts
The property x belongs to the condominium community C. and was built in 1967. The division into condominium ownership took place in 1995. A.A. and B.A. have been owners of the penthouse apartment since 1999.
Part of the flat roof previously served as a terrace for the penthouse apartment. As part of a comprehensive renovation, A.A. and B.A. applied to cover the entire area assigned to them for exclusive use with tiles in order to create a walkable terrace. The majority of the condominium owners rejected this.
A.A. and B.A. then demanded in court the order of this structural measure. The District Court and the High Court dismissed the request. A.A. and B.A. appealed against the judgment of the High Court to the Federal Supreme Court.
Considerations
The Federal Supreme Court dismissed the appeal. It stated that the requested tile laying would be useful from the appellants' point of view, as it would improve the usability of the terrace. However, this measure would be considered luxurious within the meaning of Art. 647e of the Swiss Civil Code (ZGB) from the community's perspective, as it would lie exclusively in the particular interest of the appellants as owners of the penthouse apartment.
According to the case law, only such structural measures…