Facts
The case concerns a dispute over the deletion of a servitude that established a limited right of use of a parking lot in favor of a dominant property. The owner of the dominant property, A. AG, wanted to make the parking spaces available to third parties for a fee and therefore opposed the deletion of the servitude. Moreover, a public law property restriction was registered on the dominant property, according to which at least eight visitor parking spaces had to be available on the servitude-burdened property for a multi-family house located elsewhere.
The District Court of Höfe and the Cantonal Court of Schwyz had granted the claim for deletion of the servitude. A. AG appealed against this judgment to the Federal Supreme Court.
Considerations
The Federal Supreme Court dismissed the appeal. It stated that the law of property rights in the Swiss Civil Code is governed by the principle of a closed number of real rights and the uniform design of the individual rights is mandatory (principles of type-boundedness and type-fixation). A servitude that is in its content a usufruct cannot be the subject of a real servitude.
The intention of A. AG to make the parking spaces available to third parties for a fee went beyond mere use and amounted to an actual management of the parking spaces. This was incompatible with…