Facts
On 16 October 1982, J.M. passed away. His stepson H.M. had been granted a free and lifelong right of residence on a part of the house located on plot no. 1743 belonging to the estate. On 28 November 1983, the heirs sold this plot to K.M., expressly reserving the right of residence in favor of H.M. On 21 February 1984, H.M. signed an act by which he irrevocably waived his right of residence. He also signed the application for deletion of this right from the land register. However, on 13 April 1984, the land registry office of Wattwil rejected this application, considering that H.M. was not of sound mind when signing the waiver. K.M. then appealed against this decision.Considerations
The Federal Tribunal considers that the land registrar does not have to examine the discernment capacity of the applicant, unless the latter has been the subject of a formal decision by the competent authority restricting the exercise of his civil rights. As long as the registered holder has not been declared incapable, the registrar must comply with a proper application for deletion of a real right. In the present case, the application for deletion of the right of residence was formally valid and the registrar did not have to verify H.M.'s discernment capacity when signing this application.
Furthermore, to proceed with the deletion of a real right, the written declaration of…