Facts
Dr. X. and Y. are condominium owners of one apartment each on the fourth floor of a condominium property. Above them is the condominium unit No. 27 of the married couple Z., whose floor is covered with tiles instead of carpets.
On July 17, 1977, Dr. X. and Y. concluded an "Agreement... concerning the establishment of a land easement in favor of condominium units No. 23 and 24 and burdening condominium unit No. 27" with the married couple Z. Therein, the married couple Z. undertook to have the tiled floor in certain rooms of their apartment No. 27 covered with a stretched carpet on a felt underlay in order to improve the impact sound insulation.
The land registry office refused to register an easement in the land register based on this agreement. This decision was confirmed by the Cantonal Government Council and the Cantonal Administrative Court. Dr. X. then filed an administrative court appeal with the Federal Supreme Court.
Considerations
The Federal Supreme Court upholds the administrative court appeal. It states that the intention of the contracting parties was to eliminate sound emissions for an unlimited period of time and to achieve this goal through a land easement.
A land easement may also incidentally include an obligation to perform certain actions. In the present case, the married couple Z. undertake to cover the floors of their apartment with carpets in order to prevent sound emissions. This constitutes a duty of…