Validity of an Old Real Charge Prohibiting the Waiver of a Non-Building Easement

Facts

The decision concerns an old real charge, created in 1885 in favor of the City of Zurich, which prohibits the owner of the Rosau parcel from waiving a non-building easement encumbering the Baur parcel. The owners of the Baur parcel contest the validity of this real charge under current law.

Considerations

The Federal Tribunal considers that this real charge, validly created under the former Zurich law, continues to be governed by the former law pursuant to Art. 17(3) Fin. Tit. CC, even though it could no longer be constituted under the current law. However, such a real charge would only be contrary to public policy if it violated mandatory provisions of current law enacted for reasons of public policy and morality.

The Federal Tribunal successively examines whether the disputed real charge violates the principles of indivisibility of the easement with the dominant estate, identity of the easement, and prohibition of aggravating the easement. It concludes that this real charge is not contrary to…