Dismissal of the co-owner's claim to exercise the statutory pre-emptive right

Facts

The plaintiff, a German national residing abroad, was a co-owner of a property in Switzerland. When the co-owner Maria Wetter sold her share to the German nationals Beyer, the plaintiff asserted his statutory pre-emptive right under Art. 682 para. 1 of the Swiss Civil Code (ZGB). The land registry office requested him to declare the exercise of the pre-emptive right and submit the required foreign national permit pursuant to Art. 1 of the Ordinance on the Acquisition of Real Estate by Persons Abroad (BewB) within 30 days. The plaintiff did indeed declare the exercise of the pre-emptive right in a timely manner, but could not submit the permit as he did not possess one at that time. The land registry office then registered the Beyer spouses as the owners.

Subsequently, the plaintiff filed a claim for a declaratory judgment that he had stepped into the shoes of the defendant Beyers by exercising the pre-emptive right. The Cantonal Court of Graubünden granted the claim, as it considered the exercise of the pre-emptive right to be legally valid despite the lack of a permit. The defendant Beyers then appealed to the Federal Supreme Court.

Considerations

The Federal Supreme Court overturned the judgment of the Cantonal Court and dismissed the plaintiff's claim. It stated that according to Art. 1 of the BewB, the acquisition of real estate in Switzerland by persons residing abroad requires a permit from the competent authorities. Without a legally valid permit, no ownership of real estate can be acquired. The plaintiff had neither submitted a permit within the 30-day period under Art. 681 para. 3 ZGB nor proven that he had applied…