Dismissal of an action to rectify the land register following the lapse of the legal title

Facts

A. and B. are co-owners of two parcels from which two springs emerge. By deed of 19 November 1997, they granted C. SA a series of easements, with the condition that the contract would not be valid without the issuance of building permits and the construction of a spa by C. SA. The agreed rights were registered in the land register on 11 December 1997. After complaining about the non-compliance with the deadlines, A. and B. sued C. SA, requesting the rectification of the land register and the cancellation of the registrations. The Cantonal Court of Appeal of Ticino dismissed their request.

Considerations

The Federal Court confirmed the dismissal of the action to rectify the land register. According to case law, the action under Art. 975 CC is in principle only admissible to correct entries that were unlawful from the outset. The subsequent lapse of the legal title on which the entry is based does not automatically make it unlawful. In this case, the owner of the encumbered property only has an obligatory claim against the holder of the right resulting from the land register, in order to restore the previous legal situation of the property.

In the present case, the clause in the deed that provided for the lapse of the contract…