Facts
In 1932, Paul Flück purchased an agricultural property (Parcel No. 8) from Jakob Dubach. A building prohibition was registered in favor of Flück's property on the remaining property of Dubach (Parcel No. 1186). In 1977, the joint-stock company Haus + Herd Herzogenbuchsee acquired the parcel No. 1186 burdened with the building prohibition, in order to build holiday homes on it. The defendant, Elsa Klossner-Flück, the daughter of the original purchaser, however, refused to consent to the deletion of the building prohibition.
The joint-stock company Haus + Herd Herzogenbuchsee then filed a lawsuit to have the building prohibition deleted in accordance with Art. 736 para. 1 or 2 of the Swiss Civil Code (ZGB). The Federal Supreme Court had to decide whether the easement could be terminated or redeemed against compensation.
Considerations
The Federal Supreme Court decided that the defendant's interest in maintaining the easement has not diminished. Although the burden on the plaintiff's property has increased, as the burdened property is now building land, whereas at the time the easement was established it was used for agriculture, the easement is precisely intended to protect the agricultural use of the…