Claim of the co-owner of the entitled property against the condominium owners of the servient property

Facts

The appellant X. is a co-owner of one half of the entitled property no. 3419. On 5 January 2010, he filed a claim with the main requests that it be determined that there is a total construction and planting prohibition in the view area H. on property no. 2355 in favour of property no. 3419, and that the building A be demolished and the lawful condition be restored. The appellant directed the claim against K. AG, L., M., N. and O. as well as against the condominium owners' association of the property P. (respondents 1-6). The cantonal courts dismissed the claim for lack of passive legitimacy.

Considerations

The Federal Supreme Court dismisses the appeal, insofar as it enters into it. The cantonal courts rightly denied the respondents' passive legitimacy. At the time the claim was filed on 5 January 2010, respondent 1 was no longer entitled to dispose of condominium unit no. 2355-5, as the transfer of ownership to spouses U. and V. had already been registered in the land register journal on 25 November 2009. The appellant should therefore have directed his claim against the owners registered in the journal, which he did not do. If even one of the necessary co-litigants is not included, the claim must be dismissed for lack of passive legitimacy.

The case law…