Facts
In this case, the question was whether, upon the expiration of a building right under Art. 779c of the Swiss Civil Code (ZGB), the lease contract would pass by operation of law to the landowner. The plaintiff (A. AG) had leased a retail space from the lessor (Pension Fund C.), which was located on a plot of land owned by the defendant (B.). The plot of land was encumbered with an independent and permanent building right that expired in 2013. The defendant informed the plaintiff that its lease contract would lapse due to the expiration of the building right.
The plaintiff filed a lawsuit against the defendant with the aim of having the termination of the lease contract declared invalid. The lower instances dismissed the claim, as Art. 261(1) of the Swiss Code of Obligations (OR) does not cover the case of expiration of a building right under Art. 779c ZGB, and an analogous application of this provision was not justified.
Considerations
The Federal Supreme Court confirmed the decision of the lower instances. It stated that Art. 261(1) OR regulates the transfer of the lease contract upon the sale of the leased property, but the expiration of a building right under Art. 779c ZGB does not constitute a sale within the meaning of this provision. An analogous…