Exclusion of a Co-Owner from the Co-Ownership Community

Facts

Condominium ownership is governed by Articles 712a et seq. of the Swiss CC (Civil Code). According to Article 649b CC, a co-owner may be judicially excluded from the community if their conduct or that of persons for whom they are responsible seriously violates the obligations towards the other co-owners, to the extent that the continuation of the community can no longer be reasonably expected of them. Three co-owners filed an action for exclusion against brothers A. and B. Z., who were owners of an apartment in the building. The district court granted the request, but the cantonal court dismissed the complaint. The plaintiffs then appealed to the Federal Tribunal.

Considerations

The Federal Tribunal considers that the violations of the obligations of the Z. brothers towards the community, in particular the excessive and repeated noise disturbances, are established. However, it considers that exclusion can only be ordered as a last resort, when all other possible and reasonable measures to put an end to the disturbances have proven ineffective. In the present case, although the Z. brothers…