Distribution of costs and charges of a common facility constituted as a servitude

Facts

The dispute opposes the owners of six single-family homes located in R., which are connected to a common pipeline. The owners Möschler and Müller are located at the top of the slope, while the owners Vock and Schaub are located at the bottom of the slope. The common pipeline was registered as a servitude in favor of one of the owners and at the expense of the other five owners. On October 20, 1977, a declaration was made in the context of the subdivision application, stating that the pipeline is the common property of the users, who are also responsible for its maintenance and construction. However, the distribution of construction and maintenance costs was not settled.

In June 1981, a flood occurred in the basement of Möschler's property due to a problem with the pipeline. The owners Schaub and Vock requested that the ownership shares be determined and that the costs and charges be distributed according to the actual interests of the users.

Considerations

The Federal Court examined the issue of the distribution of costs and charges of the common facility. According to Article 646 paragraph 2 of the Swiss Civil Code (CC), co-owners of a common facility are presumed to have equal shares, unless there is a contrary agreement. In this case, there is no contrary agreement, so the presumption of equal shares applies.

The Federal Court also examined the issue of the distribution of costs and charges of the facility. According to Article 649 paragraph 1 CC, costs and charges are distributed according to the ownership shares. Articles 684 and 741 CC are not applicable in this case, as they concern the relationships between landowners and beneficiaries of servitudes.

The Federal Court also examined the…