Facts
Condominium ownership exists on plot no. x with a residential and commercial building "S.". Between the building and the property boundary at the B. stream, there is an open terrace. On the ground floor, there are retail premises for a bank and a restaurant, whose entrance and window fronts open towards the terrace.
R. is the owner and operator of the restaurant and used the terrace in front of the restaurant and partially in front of the window of the neighboring bank Z. for his catering business. Bank Z. had the terrace in front of the bank renovated and installed a planter as a visual barrier in front of the bank's windows in the summer of 2006. At the condominium owners' meeting on May 14, 2007, these landscaping works were approved with 23 votes and 797 value shares against 5 votes and 111 value shares. R. (the appellant) contested the approval resolution, as his restaurant business was restricted by the redesign of the terrace.
Considerations
The Federal Court confirms the view of the Higher Court that the provisions on construction measures according to Art. 647c et seq. of the Swiss Civil Code (ZGB) in condominium ownership concern the common parts and take into account the different interests of the condominium owners with varying consent requirements.
The veto right of the non-consenting condominium owner against useful and luxurious construction measures requires a right of use and enjoyment, the exercise of which is impaired by the legally valid changes or works in the…