Facts
The case concerns the interpretation of an easement that the former property owner L. had registered in 1961 when subdividing his property in X. The easement restricted the development of the parcels to a basement, one upper floor, and an attic, and prohibited flat roofs.
One of the parcels (No. 1938) was acquired by I., who wanted to build a multi-family house there. Several neighbors opposed this project, as they believed it violated the easement. After I. had sold the property to B. AG, the latter submitted a building permit application for a slightly modified project.
Four neighbors then filed a lawsuit against B. AG, demanding that the construction project be declared a violation of the easement and be prohibited under threat of penalty. The Court of Appeal of the Canton of Bern upheld the claim.
Considerations
The Federal Supreme Court overturned the judgment of the Court of Appeal and dismissed the claim. It stated that the content of the easement is determined by the reason for acquisition according to Art. 738 para. 2 of the Swiss Civil Code. Based on the principle of trust, it must be examined how the declarations of intent expressed in the title of acquisition must be understood by an attentive, reasonable person in good faith.
Individual intentions and motives of the creator of the easement that are not…