Refusal of a special right of use on a terrace in the context of a condominium by floors

Facts

The community of co-owners of floors "X." was created on July 10, 1968, and includes the land registered under no. 2945 in Y. Two residential buildings (no. 614 and 613) and a garage (no. 615) are located on the land. The defendants, B. and A., are members of the community of co-owners of floors, B. having a special right to the apartment on the top floor of house no. 20 (value share 248/1000) and A. having a special right to the apartment on the ground floor of the same house (value share 217/1000). B. acquired his apartment in 1968, while A. bought his at the beginning of 1973. A roof garden on the roof of the intermediate building, which is in common ownership, was arranged by C., the previous owner of A.'s apartment.

On November 4, 1997, during a meeting of the co-owners, the renovation of the roof of the intermediate building was discussed. A. refused to bear the costs of renovation, even if it involved the temporary removal of the seating facilities. On November 27, 1998, B. brought an action before the district court W. to have A. cease using the common parts without authorization and remove the construction elements used for access to the roof.

Considerations

The court considered that the surface of the roof in question is a common element and that the attribution of a special right of use to this element requires the agreement of the meeting of co-owners. The creation of a special right of use in the context of an existing condominium by floors requires a modification of the regulations, which must be adopted by the meeting of co-owners. The court also considered that written form is required for the decisions of the meeting of co-owners, in accordance with articles 712m and 66 of the Swiss Civil Code.

The defendant argued that written form is not required and that decisions can be made informally. However, the court rejected this argument, considering that written form is necessary to ensure legal security and clarity of decisions. The court also considered that the defendant cannot claim a special right of…