Refusal of registration in the land register due to the death of the owner

Facts

On June 1, 1983, notary A. Flückiger drew up a deed of transfer by which Werner Hachen transferred to his daughter, Rosa Lapaire, a property located in Muri, on the account of the future inheritance. The notary was authorized to file the deed for registration in the land register. However, on June 5, 1983, Werner Hachen died, without the notary's knowledge. The notary filed the deed for registration on June 6, 1983, but then informed the land register keeper of Werner Hachen's death and requested that the registration be postponed. The registration application was rejected by the land register keeper on December 9, 1983. Rosa Lapaire filed an appeal against this decision with the Directorate of Justice of the canton of Berne, which rejected the appeal on November 1, 1984. Rosa Lapaire then filed a public law appeal with the Federal Court.

Considerations

The Federal Court examined the question of whether the land register keeper had the authority to refuse registration due to the death of the owner. The Court considered that the land register keeper must refuse registration if, during the procedure, it learns that the person authorized to dispose according to the register was deceased when their representative filed the application.

The Court also examined the question of whether Article 37 of the Code of Obligations (CO) was applicable in the context of the land register registration procedure. The Court considered that Article 37 CO is not applicable in this…