Facts
The dispute concerns the order for the definitive registration of a real estate lien of the condominium association. According to Art. 712i para. 1 CC, the association has the right to request the registration of a legal mortgage on the share of each current co-owner to secure the contributions of the last three years. The question is how to calculate this three-year period. On the one hand, part of the legal doctrine and cantonal case law consider that the starting point of the period is the last three closed financial years, while the end point is the date of registration of the mortgage in the land register. On the other hand, other authors and courts believe that the starting point is the date of the request for registration of the legal mortgage, the three-year period then being calculated retroactively from this date. The cantonal court followed the second approach, considering that the legal text does not allow limiting the mortgage to only the contributions of the last three closed financial years. This interpretation would be more in line with the ratio legis of the provision, which aims in particular to protect the purchaser of a condominium unit against arrears of contributions from the former owner.Considerations
The Federal Tribunal holds that the wording of Art. 712i para. 1 CC is not clear on the method of calculating the three-year period. Neither the text of the law nor the preparatory work provide precise indications on this subject. However, a teleological interpretation of the provision argues in favour of the second approach. Indeed, limiting the mortgage to only the contributions of the last three closed financial years could…