Attachment of a Hereditary Co-ownership Right

Facts

In an attachment proceedings for a claim of CHF 109,470.52 plus interest, the debt collection office of Zurich 4 has attached the debtor William Robert Nesher's co-ownership rights on the properties Stauffacherstrasse 27 and Universitätsstrasse 87 in Zurich, which were still part of the paternal estate after a partial distribution. The sole co-heir is the debtor's brother, Jules Nesher, who has been informed of the attachment. The widow of the heir has a lifelong usufruct on the estate. The debtor has contested the attachment, requesting a new valuation and the release of his co-ownership right on the property Universitätsstrasse 87, on the grounds that his co-ownership right on the property Stauffacherstrasse 27 would provide sufficient coverage. This second request was rejected by the cantonal instances. They notably considered that the bearer bond of CHF 300,000 registered in the last rank on the property Stauffacherstrasse 27 should be taken into account as an effective mortgage charge, as it was not a title of ownership.

Considerations

The Federal Tribunal considers that the debtor cannot separately attach his co-ownership right on each hereditary property, but only his co-ownership right on the entire unpartitioned estate. However, nothing prevents the attachment from being limited to the co-ownership right on a single property, if it provides sufficient coverage for the claim being pursued and if the co-heir Jules Nesher consents to it.

The Federal Tribunal considers that the bearer bond of CHF 300,000 must be considered as an effective mortgage charge, unless it is a title of ownership of the heirs that remains in their hands and is not encumbered with third-party…