Facts
The case concerns a dispute between A.E. (plaintiff) and O.R. (defendant) over the permissibility of an additional burden on an easement. The defendant planned to expand his residential house on the burdened property by installing additional apartments, which would lead to more intensive use of the right of way for pedestrians and vehicles.
The Federal Supreme Court had to assess whether this planned additional burden on the easement is permissible under Art. 739 of the Swiss Civil Code (ZGB).
Considerations
According to the case law of the Federal Supreme Court, an additional burden on an easement under Art. 739 ZGB is impermissible if it is substantial. In assessing the substantiality, the interest of the dominant and the burden on the servient property at the time of the establishment of the easement are to be compared with the current situation.
In the present case, the Federal Supreme Court concluded that the planned additional burden through the installation of additional apartments will indeed result in more intensive use of the easement, but this is within a certain scope and can be reasonably expected. On the one hand, the parties' interests have not changed significantly compared to the establishment of the easement. The defendant's interest in better utilization of his property is only offset by minor impacts on the plaintiff, which can…