Facts
Michael Csizmas is the condominium owner of the penthouse apartment in the building located at Zähringerstrasse 21-23 in Bern. The building is equipped with a central ventilation system to which all apartments are connected. However, as all rooms in the penthouse apartment can be ventilated through windows, Michael Csizmas had the connections of the penthouse apartment to the ventilation system sealed off in 1982. Michael Csizmas subsequently applied to the condominium association to be exempted from contributing to the costs of the ventilation system. At the general meeting on January 24, 1985, the application was unanimously rejected.
Michael Csizmas then filed a lawsuit with the Court of Appeal of the Canton of Bern. The Court of Appeal overturned the contested decision. The condominium association Zähringerstrasse 21-23, Bern, appealed to the Federal Supreme Court.
Considerations
According to the binding findings of the lower court, the connection of the plaintiff's apartment to the central ventilation system could have been waived, as the plaintiff's penthouse apartment can ventilate all rooms through windows and the plaintiff has sealed off the supply and exhaust air connections to his apartment. The plaintiff thus does not actually use the central ventilation system.
The Federal Supreme Court states that Art. 712h para. 3 of the Swiss Civil Code should only be applied with restraint, as too generous an application would lead to complicated and costly cost allocations. In the application, the primary consideration should be an objective perspective, i.e., the decisive factor is whether a particular facility or installation actually provides no benefit to a condominium unit. Subjectively conditioned…