Facts
The plaintiff, Ms. Anna Christen, is the owner of two adjacent properties in the Altenberg district in Bern. She intends to develop and subdivide her properties according to a unified plan. For a planned single-family house with a garage in the upper part, she would like to create an access road over the neighboring property of the defendant, the Bern Deaconess House. Since she does not have a right of way, she applied for the granting of an easement of necessity under Art. 694 of the Swiss Civil Code (ZGB). The Appellate Court of the Canton of Bern obliged the Deaconess House to grant the plaintiff a right of way for motor vehicles in return for compensation of CHF 25,000. The Deaconess House appealed against this judgment to the Federal Supreme Court.Considerations
The Federal Supreme Court overturns the judgment of the Appellate Court and dismisses the claim. It states that for the application of Art. 694 ZGB, the decisive factor is not the type of use and management of a property that has once been given, but a true need for a way. Such a need does not exist here, as building solutions are possible that can be realized without encroaching on the neighboring property. The property owner wishing to build must adapt to the topographical…