Restrictions on the right of disposal after registration in the land register

Facts

On 1 October 1983, a sales contract was concluded between the seller Alexander Jegger and the buyers Max and Lina Bischoff-Müller for a property located in the municipality of Obersaxen. On 8 October 1983, another sales contract was concluded between Alexander Jegger and Walter Jansen for the same property. The sales contract between Alexander Jegger and Walter Jansen was filed with the Obersaxen land register office on 20 October 1983 for registration of ownership. At the request of the Bischoff-Müller spouses, the president of the Glenner district court issued a superprovisional decision on 22 October 1983, which blocked the property in the name of Alexander Jegger with a registration in the land register. On 16 November 1983, the Obersaxen land register conservator rejected the application for registration of Alexander Jegger's ownership to Walter Jansen due to this decision.

The Regierung des Kantons Graubünden rejected the complaint filed against the decision of the land register conservator. Alexander Jegger then filed a complaint with the Federal Court, which annulled the decision of the Regierung des Kantons Graubünden and ordered the Obersaxen land register office to register the sales contract of 8 October 1983 between Alexander Jegger and Walter Jansen in the main register.

Considerations

The Federal Court considered that Article 960 paragraph 1 number 1 of the Swiss Civil Code (CC) applied in this case, and not Article 961 paragraph 1 number 1 of the CC, as it was a restriction on the right of disposal to secure litigious claims. The Federal Court also considered that, once the legitimate owner has proceeded with the application for registration and has provided the necessary legitimation regarding his right of disposal and the title on which the transaction is based, a subsequent restriction on his right of disposal can no longer hinder him in his right of disposal.

The Federal Court also examined the question of whether a restriction on the right of disposal could have a retroactive effect on a registration already made in the land register. It concluded that, once the Eigentum has been registered in the land register, the restriction on the right of disposal can no…