Facts
The case concerns a dispute between Hermann Akeret, owner of a house in St-Moritz-Bad, and Arthur Metz, who entered into a rental agreement with Akeret for a period of two years, tacitly renewable every six months. Subsequently, the parties signed a contract providing for the grant to Metz of a right of ownership of the apartment, in the form of a transferable and transmissible personal servitude, in exchange for taking over a mortgage loan. The contract was registered in the land register.
The dispute began when Akeret brought an action to have the personal servitude declared null and void and removed from the land register. Metz contested this request, arguing that the servitude was valid and that he was entitled to compensation in the event of termination.
The cantonal court partially upheld Akeret's request, declaring the nullity of the personal servitude and ordering its removal from the land register, but also condemned Akeret to pay compensation to Metz. Both parties appealed to the Federal Court.
Considerations
The Federal Court examined the question of whether the personal servitude created by the parties was valid. It considered that the transferable and transmissible personal servitude, as provided for in Article 781 paragraph 2 of the Swiss Civil Code (CC), could not be used to create a right of habitation equivalent to a right of ownership.
The Federal Court estimated that the creation of such a servitude would contravene the principles of property law and in…