Management of the building to be carried out in the enforcement of a pledge

Facts

X. SA holds a right of superficies on two parcels, property of Foundation Y., and leases certain premises in the buildings erected on these parcels to third parties. At the request of Foundation Z., the holder of mortgage deeds encumbering the said right of superficies, the Rhône-Arve Debt Collection Office has notified the holder of the right of superficies of an enforcement of a real estate pledge. The office has entrusted a third party with a limited management mandate, with a view to collecting the rents. The pledgee creditor having subsequently informed the office that it opposed the payment of the ground rents, the managing third party informed the owner of the parcels that it could no longer assume the payment of the rents in question. The owner has therefore in turn notified the holder of the right of superficies of an enforcement, which has been opposed. Informed by the debtor of the issuance of a provisional release order rendered in this second enforcement and requested by her to advance the costs for an action for debt release or to pay the outstanding ground rents, the office did not respond, nor react in any other way.

The complaint filed by the holder of the right of superficies against this implicit refusal of the office to pay the outstanding ground rents or to initiate an action for debt release in the second enforcement was dismissed, to the extent of its admissibility, by the cantonal supervisory authority.

The holder of the right of superficies has appealed to the Debt Collection and Bankruptcy Chamber of the Federal Tribunal, reiterating the conclusions formulated at the cantonal level regarding the payment of the ground rent by the managing third party or the office and the opening of the action for debt release, with the financial consequences resulting for the office from its inaction.

Considerations

After the notification of the notice to tenants and lessees and until the pledgee creditor requests the realization, the office is required, under Art. 94 para. 1 DEBA, to take, in place of the owner of the pledge, all necessary measures to ensure and effect the collection of rents and leases. It also has the right to order urgent repairs and to allocate the rents and leases collected by it to the payment of current fees. This is a limited management limited to these urgent protective measures.

From the date of the request for sale, the office - or the third party it has substituted -…