Division of an Agricultural Enterprise - Applicability of the Prohibition on Partition

Facts

W. and his nieces X., Y. and Z. are co-owners of several agricultural properties, buildings and facilities, each holding a 50% share. W. operates these properties together with parcels owned by his wife and leased plots as an agricultural enterprise. In the intended dissolution of the co-ownership, it must be examined whether the prohibition on partition under Art. 58 et seq. RLRA applies.

Considerations

The Federal Supreme Court decides that the prohibition on partition is generally applicable, as the dissolution of the co-ownership was registered with the land registry after the entry into force of the RLRA. The private law transitional provision of Art. 94 para. 2 RLRA does not preclude this, as the public law restrictions on the shaping of private law are binding.

Furthermore, the Federal Supreme Court holds that all co-ownership shares belong to the agricultural enterprise within the meaning of Art. 7 para. 1 RLRA, regardless of whether individual properties are operated by the appellant himself or leased by the other co-owners. The prohibition on partition must therefore be applied to the entirety of the co-ownership shares.

The…