Facts
The case concerns the question of whether the division of inheritance triggers a new five-year prohibition period for the alienation of non-agricultural real estate. The Land Registry Office and the Judicial Commission of the High Court of the Canton of Lucerne were of the opinion that the division of inheritance triggers a new prohibition period. Jost Schumacher, Notary, and Gertrud Bosshardt-Müller, as well as the Federal Department of Justice and Police (FDJP), filed an administrative court appeal against this with the Federal Supreme Court.
Considerations
The Federal Supreme Court dismissed the appeal. It stated that the division of inheritance constitutes a change in the composition of a joint ownership relationship and therefore, pursuant to Art. 3 para. 3 of the Federal Resolution on a Prohibition Period for the Alienation of Non-Agricultural Real Estate (BBSG), triggers a new prohibition period. This is in line with the case law of the Federal Supreme Court on the prohibition period for the alienation of agricultural real estate.
The Federal Supreme Court saw no reason to apply a different practice for non-agricultural real estate, as long as this does not conflict with the purpose of the BBSG, which is to prevent cascade sales. The fact that the division of inheritance is mentioned in Art. 2 para. 1 lit. a BBSG does not change this, as changes in joint…