Facts
By notarial deed dated March 5, 1981, X. sold to his son A. the properties forming his agricultural operation, in particular plot no. 4371 of the cadastre of E. The deed of sale contained a clause providing for a share of the gain within the meaning of the former Art. 218quinquies CO. This right to a share of the gain was annotated in the land register, with indication of the deadline, i.e. March 15, 2006. It was deleted upon expiry.
After the death of X. and his wife, their four children (A., B., C. and D.) became the heirs. A sectoral development plan for the E.-F.-G. plateau was approved in 2005, including plot no. 4371 (now no. 6209) for stages 2 and 3. However, the cantonal zoning plan for the western economic development hub, the first stage, approved in 2005, did not concern this plot.
In 2006, the estate of the late X. had a provisional registration of a lien, without indication of the amount, annotated to secure the right to a share of the gain. A. then opened an action for correction of the land register aimed at the deletion of this registration, an action that was dismissed at first instance.
Considerations
The Federal Tribunal upheld A.'s appeal and ordered the deletion of the annotation in question. According to the Court, the new agricultural land law (LDFR) applies to the issue of alienation, and not the former law. Under Art. 94 para. 3 LDFR, an existing right to a share of the gain at the time of the entry into force of the law retains its validity, but its effects are governed by the new law, in particular with regard to enforceability and calculation.
The classification of an agricultural property in a building zone constitutes an alienation entitling to a share of the gain (Art. 28 para. 1 and 29 para. 1 let. c LDFR). According to Art. 29 para. 2 let. c LDFR, the…