Decision on the Consent of the Landowner to the Transfer of a Distinct and Permanent Building Right

Facts

The Burgergemeinde of Bern, the owner of several parcels encumbered with distinct and permanent building rights, requested the land registry to establish that any transfer of these building rights requires its consent. The land registry refused to consider the matter, stating that this question falls within the jurisdiction of the civil court. The Burgergemeinde then appealed against this decision to the cantonal administrative authorities and then to the Cantonal Administrative Court, both of which dismissed its appeal. The Burgergemeinde finally filed a civil law appeal with the Federal Tribunal.

Considerations

The Federal Tribunal considers that the question of whether the consent of the landowner is necessary for the transfer of a distinct and permanent building right falls within the jurisdiction of the civil court, which must examine the conditions of such a transfer by involving the holder of the building right and the potential acquirer.

According to the applicable law, the land registry is neither authorized nor obliged to make the transfer of a distinct and permanent building right subject to the consent of the landowner. The holder of the building right alone is entitled to dispose of it and is not bound by any contractual agreement in this regard. The legal…