Facts
The municipality of Lucerne has filed a possessory action against [A.] and others. The proceedings were conducted before the 2nd Civil Law Division of the Federal Court (5A_453/2007). The lawsuit aims to restore or maintain the previous state. The lower court has ruled on the possessory action and the Federal Court has dealt with the appeal in civil matters.
The parties are the municipality of Lucerne as plaintiff and [A.] and others as defendants. The proceedings were completed on October 3, 2007. The main question of the proceedings was whether the possessory action is a precautionary measure within the meaning of Art. 98 LTF.
Considerations
The Federal Court has decided that the possessory action is a precautionary measure within the meaning of Art. 98 LTF. This means that the lawsuit aims to restore or maintain the previous state and does not decide on the material jurisdiction. The possessory action provides the applicant with provisional legal protection without deciding on the material jurisdiction.
The Federal Court relied on the message on the total revision of federal jurisdiction of February 28, 2001, which stated that possessory protection is a precautionary measure. The court also referred to the case law according to which the possessory action does not decide on the material…