Facts
[T.] is the owner of plot 3556, which is encumbered with a bearer bond in second rank. The debt collection office A. has scheduled the auction of plot 3556 at the request of the mortgage creditors [B.] and D. However, [T.] has filed a land register correction claim with the district court, as plot 3556 is connected to a co-ownership share in plot 4027. [T.] fears that the auction of plot 3556 would also realize the co-ownership share in plot 4027, which would cause him significant disadvantages.
The cantonal supervisory authority has therefore revoked the auction notice and instructed the debt collection office to schedule the auction only after the land register correction proceedings have been finally settled. The mortgage creditors [B.] and D. have appealed against this decision to the Federal Supreme Court.
Considerations
The Federal Supreme Court states that co-ownership, which is established in such a way that it belongs to the respective owner of a property as a real right, cannot be disposed of independently, but is necessarily connected to the property. The debt collection office and the supervisory authorities must therefore be limited to the finding that the mortgage object cannot be disposed of without also disposing of the associated co-ownership share.
Since in the present case it is unclear whether plot 3556 must be realized only together with the co-ownership share in plot 3866 or additionally with the co-ownership share in plot 4027, the auction date can only be set after the land register…