Facts
Nowo Immobilien AG acquired an agricultural property in Jonen in 1958. In 1960, it wanted to sell the property for development and concluded a purchase contract with Hans Laager. The Directorate of Agriculture of the Canton of Aargau granted an exceptional permit pursuant to Art. 218bis CO to allow the sale before the expiry of the 10-year prohibition period under Art. 218 para. 1 CO.
In 1966, Hans Laager granted the architect Ernst Kreiner a time-limited, transferable purchase option on the property. However, the Directorate of Agriculture declared this purchase option contract null and void, as in its view the property was not building land within the meaning of Art. 218 para. 2 CO and therefore remained subject to the prohibition period.
Hans Laager and Ernst Kreiner appealed against this decision to the Government Council of the Canton of Aargau, which dismissed the appeal. The Government Council concluded that the property was not yet building land due to insufficient sewage infrastructure and therefore remained subject to the prohibition period.
Considerations
The Federal Supreme Court upheld the decision of the Government Council. It stated that the term "building land" within the meaning of Art. 218 para. 2 CO is a federal law concept that the authorities must define more precisely. The Federal Supreme Court had only reviewed the authorities' interpretation for arbitrariness until 1965, but since then has conducted a free review.
The Federal Supreme Court followed the case law according to which a property is only considered building land if it "can be…