Facts
[A.] is the owner of Plot No. 164, which borders to the north on Plot No. 162, which is co-owned by Cooperative [B.] and six other co-owners. The road Q runs along the western boundary of both plots. The former owners of the plots agreed in 1938 on an unlimited right of way on foot and by vehicle in favor of Plot No. 164 and to the detriment of Plot No. 162, as well as an above-ground right of closer construction up to 2 m from the boundary in favor of Plot No. 162 and to the detriment of Plot No. 164. In 1990, the former owners concluded a new easement contract, which granted both landowners the right to build up to the common plot boundary. As a result, a commercial building was erected on Plot No. 162 up to the boundary. In 2017, [A.] acquired Plot No. 164 and filed a lawsuit against Cooperative [B.] and six other co-owners of Plot No. 162 to obtain the restoration of the right of way on foot and by vehicle from 1938. The lower courts dismissed the claim and upheld the counterclaim for the deletion of the easements from 1938.Considerations
The Federal Court confirms the decisions of the lower courts. It states that in addition to the statutory grounds for the extinction of easements, an express or tacit waiver can also lead to their extinction. In the present case, such a tacit waiver is to be affirmed: By allowing the then owner of Plot No. 162 to build up to the common boundary in 1990, the then owner of Plot No. 164…