The unregistered right of use cannot be included in the schedule of charges

Facts

The case concerns a dispute between M.-G. and her husband, M., regarding a property located in Kloten. The property is encumbered with two mortgages in favor of the Schweizerische Bankgesellschaft (SBG). In the context of the divorce proceedings, the judge of provisional measures granted M.-G. the exclusive right of use of the property. M. was ordered to pay the mortgage interest and other property expenses. A prohibition of disposal was pronounced on the property, which was registered in the land register.

The SBG then brought an action for realization of the property and the debt collection office established a schedule of charges and an auction protocol. The schedule of charges included a provision regarding M.-G.'s right of use, which was not registered in the land register. M.-G. filed an appeal against this provision, requesting its cancellation as well as that of the auction protocol.

The cantonal authorities rejected the appeal, and M.-G. filed an appeal with the Chamber of Debt Collection and Bankruptcy of the Federal Court.

Considerations

The Chamber of Debt Collection and Bankruptcy considered that the unregistered right of use cannot be included in the schedule of charges. Indeed, according to Article 34 of the Ordinance on Debt Collection and Bankruptcy (FPO), only rights registered in the land register or annotated can be included in the schedule of charges.

The Chamber also considered that the decision of the judge of provisional measures granting M.-G. the exclusive right of use of the property did not constitute a lease agreement within the meaning of the Code of Obligations. Consequently, M.-G.'s right…