Facts
The dispute concerns a possessory action (action réintégrande) brought by the current owner of an estate against his former tenant, who has transferred the operation to his nephew. The recurrent owner argues that he must be able to request the restitution of the possession of the property under the conditions provided for in Art. 927 para. 1 CC, without any other conditions being imposed on him, such as those of Art. 261 CPC.
The cantonal court dismissed the possessory action on the grounds that the owner has never had possession of the properties, which has passed from the former owner to the tenants and from them to their nephew, the defendant.
Considerations
The Federal Tribunal considers that this conception is in manifest contradiction with the rules on the transfer of possession of Art. 922 et seq. CC. When the owner who has leased his property alienates it by an authentic deed of sale, he also transfers to the acquirer the mediate possession that is his own, by delegation of possession (Besitzanweisung), without the immediate possession of the tenants being affected (Art. 924 para. 1, 1st hypothesis, CC).
It is therefore arbitrary to apply to the subsequent acquisition by voluntary…