Facts
The case concerns a contract dated September 4, 1989, in which Frieda W. as well as Claire, Conrad, Martin and Jörg G. granted Werner B. an independent and perpetual building right on a property in X. The building right was limited until December 31, 2055. To secure the building right rent, Werner B. was obligated to establish a mortgage in the form of a maximum mortgage of 2 million Swiss francs in the first rank on the building right in favor of the landowners.On March 20, 1991, Werner B. declared the waiver of the building right and requested the deletion as owner as well as the closure of the corresponding land register sheet. However, the land registry office rejected this application, as the consent of the creditors of the mortgage deed was missing. Werner B. then filed a complaint against this order.
Considerations
The Federal Supreme Court confirmed the rejection of the land registry office. It stated that an independent and perpetual building right is considered a real estate within the meaning of the law according to Art. 655 para. 2 CC, but legally speaking it is not a physical thing, but an easement. Therefore, such a right cannot be abandoned by dereliction (abandonment) like a piece…