Facts
On 13 June 1988, Mr. X granted Ms. Y a free right of residence on an apartment in his villa. The contract would have entered into force upon the marriage of the parties and would have expired with their separation, divorce or - in the event of the grantor's prior decease - with the new marriage of the user. Furthermore, if the grantor had died prior to 1 January 1993, 1998, 2003 or 2008, the right of residence would have lasted for another two, three, four or five years after his death. After this period, the easement would not have expired automatically, but the new owner of the property would have had the right to give the beneficiary 12 months' notice to vacate the apartment; the cancellation of the right from the land register would have required the written consent of the user and a certificate in which she declared to have received the agreed compensation of CHF 500,000, adjusted to the national consumer price index on the day of cancellation.Considerations
The Federal Tribunal considered that the new evidence submitted by the appellants (the marriage certificate) could be taken into account for the judgment pursuant to Art. 105 para. 1 FJA. However, the contract signed by the appellants also contains termination conditions, the compatibility of which with Art. 776 et seq. CC must be examined.
The Federal Tribunal stated that a right of residence intended to expire with the new marriage of the holder, the divorce of the parties or the prior decease of the grantor (with a predetermined minimum duration) can be registered in the land register.…