Facts
The Federal Supreme Court decided in this case that a servitude of the same content (so-called subbuilding right) can be established against an independent and permanent building right registered as a property in the land register, and a separate land register folio can also be opened for this second entitlement. This is generally permissible, even though the establishment of subbuilding rights can sometimes lead to complex legal relationships.
In the present case, it was about a building right of the Swiss Confederation, which it wanted to grant to the Magglingen Housing Cooperative as a subbuilding right. The land registry office and the cantonal supervisory authority had initially rejected this, as the subbuilding right would encompass the entire content of the building right and would therefore be equivalent to a transfer of ownership. However, the Federal Supreme Court saw it differently and decided that the building right and the subbuilding right, although largely coinciding in content, nevertheless represent different rights that can coexist.
Considerations
The Federal Supreme Court explained that the building right is a servitude, but it has a special status among the limited real rights. It can be so comprehensive that it excludes any other use of the property. However, it is limited in time and subject to the right of reversion of the landowner.
The subbuilding right is also a servitude that is subject to the right of reversion. The person entitled to the building has a statutory pre-emptive right to the subbuilding right. Even though the subbuilding right encompasses the entire content of the building right,…