Facts
The Swiss Federal Railways SBB AG (Defendant) is the owner of Parcel No. a[.] in Chur. The Plaintiffs are the heirs of the owner of the adjacent Parcels Nos. b[.] and c[.] .
According to the 1988 overall development plan for the railway station area (GÜP 1988), a so-called north wing with four upper floors and a maximum height of approx. 17.8 m could have been built on Parcel No. a[.] . The then owner of Parcels Nos. b[.] and c[.] filed an objection to this with the Chur City Council.
In settlement negotiations, the parties agreed on 6 July 1988 that the north wing may only be built up to the 3rd upper floor, i.e. up to a maximum height of 14.8 m. The objector then withdrew her objection.
The GÜP 1988 was accordingly adapted and noted in the land register. However, the north wing was never built, and the area of the neighbourhood plan F was redesigned by the 2002 overall development plan for the railway station area (GÜP 2002).
The Plaintiffs now demand that the agreement of 6 July 1988 be registered as a real servitude to the detriment of the Defendant's Parcel No. a[.] and in favour of their Parcel No. b[.] .
Considerations
The Federal Supreme Court concludes that the agreement of 6 July 1988 does not constitute a building height restriction in the sense of a negative real servitude according to its content. The clear wording of the agreement shows that it was merely about the withdrawal of the objection to the GÜP 1988, but not about the…