Facts
The decision concerns a dispute over the registration in the land register of a land easement burdening a share of co-ownership property. The facts are as follows: The building "L" is subject to the condominium regime. Among the fifteen co-ownership units is an underground parking ("A") divided into co-ownership shares corresponding to the parking spaces. In August 1986, the owners sold co-ownership unit No. 7 with parking space No. 7 to S., simultaneously establishing a "right of use" easement over parking space No. 10 in favor of the owner of unit No. 7. In October 1986, they sold unit No. 10 with parking space No. 10 to the B. spouses. In 1989, K. acquired unit No. 7 and parking space No. 7. In 1997, K. unsuccessfully claimed the right to use parking space No. 10 from the B. spouses, leading to the opening of legal proceedings.Considerations
The Federal Tribunal considered that the registration of a land easement burdening a share of co-ownership within an underground parking was legally possible and admissible. Indeed, case law and doctrine accept that a share of condominium property may be burdened with a land easement in favor of another, provided that the rights of the other co-owners on the common property are not affected and that the burdened share does not lose its value as an object of the legal pledge provided for in Art. 712i CC.
The fact that the underground parking is divided into dependent co-ownership does not exclude the establishment of such an easement. Although the co-ownership shares are inextricably linked to the other co-ownership units, the co-owners can still, by mutual agreement, decide on the transfer or…