Rejection of the co-owner's pre-emption claim upon the sale of the entire building

Facts

The present case concerns the termination of the co-ownership of a building belonging to Ms. Pauline Uster, under guardianship, and Dr. Kaestlin. Ms. Uster initiated an action for the division of the co-ownership in accordance with Arts. 650 and 651 CC. Mr. Kaestlin invoked a pre-emption right under Art. 682 CC, but the lower instances and the Federal Tribunal rejected this claim.

Considerations

The Federal Tribunal considers that the pre-emption right provided for in Art. 682 CC applies only in the case of the sale of a share of co-ownership to a third party, and not when the co-ownership is terminated by the sale of the entire building, in accordance with Arts. 650 and 651 CC. This interpretation stems from the clear wording of Art. 682 CC, which specifically targets the acquisition of a share by a non-co-owner. Furthermore, the preparatory works of the CC do not mention the application of the pre-emption right in the case of the sale of the entire building.

Moreover, the Federal Tribunal notes that when one of the co-owners is under guardianship, the sale must…