Facts
Sumatra Bau AG intended to construct a hotel on its properties in Zurich. The planned building was to be located directly on the border of the neighboring property of the Rühle estate. The Rühle heirs then filed a private law construction objection against the project modification, as they believed the building would violate the applicable setback distance.
The single judge dismissed the objection, as the modified project represented a reduction in the setback distance compared to the original, unchallenged project. The Cantonal Court of Zurich confirmed this decision, reasoning that the Rühle heirs had not objected to the construction project in a timely manner and had therefore forfeited their right to demand the removal or omission of the construction.
The Rühle heirs appealed the Cantonal Court's decision to the Federal Supreme Court, requesting that the defendant be prohibited from carrying out the contested project.
Considerations
The Federal Supreme Court concluded that the contested decision was not a final judgment within the meaning of Art. 48 OG, against which an appeal would be admissible. The construction objection in the Zurich summary proceedings serves only for provisional legal protection and does not lead to a final decision on the substantive claim.
While the forfeiture…