Rejection of the request by the community of condominium owners to register a legal lien on the shares of the auction purchasers

Facts

R. Müller-Keller was the owner of four condominium units in the Müllistrasse 5 building in Fehraltorf/ZH. These units were seized and sold at auction to P. Hänni and W. Leibold. The community of condominium owners then requested the registration of a legal lien on these shares for unpaid contributions of R. Müller-Keller. The lower instances rejected this request, which the community ultimately brought before the Federal Tribunal.

Considerations

The Federal Tribunal considers that the community's right to register a lien for the unpaid contributions of the last three years constitutes an obligation propter rem, which can be asserted against each successive owner. However, when the lien has not been registered in the land register and has therefore not been taken into account during the forced realization, it is extinguished and can no longer be invoked against the auction purchaser, even if the latter was aware of it by other means.

Indeed, unregistered liens not mentioned in the schedule of charges are deemed extinguished with respect…