Facts
On January 20, 1960, the heirs of X, namely his widow, Mrs. X, and their seven children, entered into a notarized deed of partition of the Y lands. This agreement provided for the partition of plot No. x into several new plots and the distribution of all plots according to their assigned values. Mrs. D. received, in particular, a plot (currently No. y) on which buildings nos. a, b, and c are located.
The parties agreed that these buildings would be the property of A, Mrs. B, Mrs. C, and Mrs. D, each for a quarter. They also agreed to establish a personal superficies servitude on these buildings in favor of A, Mrs. B, and Mrs. C.
The superficies servitude was registered in the land register on February 12, 1960. The servitudes register indicates that the buildings will belong to Mr. G for one-eighth (1/8), to Mr. E for one-twelfth (1/12), and to Mr. F for one-twenty-fourth (1/24).
On September 10, 2002, A sued E, F, and G before the Court of First Instance of the Canton of Geneva, seeking a declaration that the D consorts were wrongly registered in the servitudes register of the Geneva land register as holders of a superficies right on buildings nos. a, b, and c located on plot No. y in the commune of Y.
Considerations
The Federal Court examined the establishment of the superficies servitude and its registration in the land register. It considered that the parties' agreement was null and void due to impossible content, as it is not possible to attribute to Mrs. D a share of collective ownership of one-quarter of the buildings that are the subject of the superficies right without simultaneously making her a co-titleholder of this right.
However, the Federal Court admitted the conversion of the null clause of the notarized deed of partition of January 20, 1960, into a clause by which a superficies servitude is established…