Decision on the Impossibility of a Double Auction with and without Restriction of Public Law on Property

Facts

This decision concerns a dispute between Schweizerische Kreditanstalt (mortgage creditor bank) and company X. AG (debtor) in the context of a compulsory enforcement procedure on a property. Schweizerische Kreditanstalt requested that the property be auctioned successively with and without the restriction of public law on the property (limitation of the land use coefficient), but this request was rejected by the cantonal and federal authorities.

In April 1993, company U. AG (predecessor of X. AG) concluded an agreement with the neighboring owners regarding the calculation of the land use coefficient, burdening its property no. 2168 (encumbered with a mortgage in favor of Schweizerische Kreditanstalt) with a use restriction of 200 m2 each in favor of the neighboring properties. These use restrictions were registered in the land register in May 1993 as restrictions of public law on the property.

During the compulsory enforcement procedure of property no. 2168 by Schweizerische Kreditanstalt, the latter requested that the property be auctioned successively with and without the restriction of public law, but this request was rejected by the cantonal and federal authorities.

Considerations

The Federal Tribunal considered that, although the use restriction was established by a private law agreement, it nevertheless constitutes a restriction of public law on the property, decided by the municipal authority and registered in the land register. This restriction cannot be removed in the context of the forced sale, as the transfer of…