Facts
The case concerns the application of Art. 681 para. 2 of the Swiss Civil Code (ZGB), according to which the statutory pre-emption right lapses if the property is sold to a person who has a pre-emption right of the same or a higher rank. Both the appellant and the respondent invoke an equal-ranking pre-emption right as co-owners of the property, which is encumbered with an independent and permanent building right.
On 9 June 2011, C. AG sold the building right property and 27 condominium units to the appellant A. AG. The respondent B. received notification of the conclusion of the purchase contract on 8 July 2011 and declared on 20 September 2011 that he would exercise his pre-emption right to the building right property.
The Cantonal Court found that B. has a pre-emption right to the building right property. A. AG then filed an appeal with the Federal Supreme Court, requesting that the claim be dismissed.
Considerations
The Federal Supreme Court states that according to Art. 681 para. 2 ZGB, the pre-emption right lapses if the property is sold to a person who has a pre-emption right of the same or a higher rank. The dispute is over the point in time at which the equal or higher-ranking pre-emption right of the acquiring person must exist for the pre-emption right to lapse.
According to the legislative history of Art. 681 para. 2 ZGB, the equal or higher-ranking pre-emption right must exist at the time the contract is concluded and cannot be acquired only…