Decision on the right to request the registration of a statutory lien of artisans and contractors

Facts

In this case, the Federal Supreme Court (FSC) was seized of a dispute between the contractor Robusti and the company Kieswerk Hüntwangen AG, the owner of the land on which Robusti had carried out work at the request of the tenant Reblis Fertigbau AG. Robusti requested the registration of a statutory artisan's lien on the land of Kieswerk Hüntwangen AG to secure the payment of his claims. The Cantonal Court had dismissed the request on the grounds that the work carried out concerned a movable construction that would not have become an integral part of the building. The FSC ultimately upheld Robusti's right to register the statutory lien.

Considerations

The FSC first reviewed its previous case law according to which the right to request the registration of a statutory lien under Art. 837 para. 1 no. 3 CC constitutes only a personal right and not a real right. It now considers that this right is exercised against the owner of the property, even when the work was not carried out on his order but on that of a tenant. This is indeed a "real obligation" (Realobligation) that follows the property.

Regarding the qualification of the construction in this case, the FSC considers that it is not a movable construction within the meaning of Art. 677 CC. Although the duration of the lease and the building permit were limited, the work carried out, in…