Facts
The appellants A.C. and B.C. are the owners of a residential and commercial property in F. They were also beneficiaries of an independent and permanent building right to construct a parking facility on an adjacent property owned by the respondent X. AG. In 2003, the parties concluded a preliminary contract on the cancellation of this building right in exchange for the provision of 20 parking spaces by X. AG. In 2004, the building right was cancelled, but X. AG was unable to provide the parking spaces at that time, as the property had not yet been divided into condominium ownership.
After the construction of the residential and commercial building on the property of X. AG, the appellants found that the roof structures exceeded the height restriction agreed upon in the preliminary contract. They then filed a lawsuit with the main claim to order X. AG to remove the roof structures.
The Cantonal Court dismissed the main claim, as the roof structures were common building components of the property held in condominium ownership and X. AG could not obtain the necessary consent of the other condominium owners. The Federal Supreme Court confirmed this assessment.
Considerations
According to the case law of the Federal Supreme Court, subjective impossibility of performance within the meaning of Art. 97 para. 1 CO only exists if the performance obstacle is virtually insurmountable for the debtor. This is the case if the debtor no longer has any possibility of obtaining the necessary consents from the persons entitled to dispose of the property.
In the present case, it is undisputed that the roof structures are common building components of the property held in condominium ownership.…