Facts
A.K., who died in 1916, was the owner of a property in the municipality of X. After his death, the land register folio C 148 for this parcel 789 was opened, without any owner being registered. In 1986, eight descendants of B.K., a son of A.K., requested based on Art. 662 of the Swiss Civil Code (ZGB) that the ownership of the property be awarded to them, as they had possessed and cultivated it for over 30 years without challenge.
One of the other heirs of A.K. filed a claim with the request that the defendants be denied the right of acquisition by prescription under Art. 662 para. 1 ZGB. The lower instances dismissed the claim and instructed the land registry office to register the defendants as co-owners.
By appealing to the Federal Supreme Court, the plaintiff requested that the judgment be overturned and his claim be upheld. The Federal Supreme Court granted the appeal, overturned the contested judgment and remanded the case for new assessment and decision to the lower instance.
Considerations
The Federal Supreme Court stated that the requirements for extraordinary acquisition by prescription under Art. 662 para. 2 ZGB were not met. Although the registered owner A.K. had died at the beginning of the 30-year prescription period, no distribution of the estate had taken place, so that the community of heirs continued to exist. However, the principle of the imprescriptibility of the claim for division stands in the way of the acquisition by prescription of estate assets by individual heirs or their legal successors.
The Federal Supreme Court rejected the view of the lower instance that extraordinary acquisition by prescription is also permissible if the registered and deceased owner has left heirs and the possessor refers to the…