Facts
The case concerns the acquisition of real estate by individuals domiciled abroad and the nullity of mortgage certificates used to finance these acquisitions. The company TRIVAG AG, whose board chairman is Dr. Rupert Felder, intended to acquire land in Uitikon-Waldegg to build a real estate project called "Residenza Selva". The company STIFA Treuhand-Anstalt, a Liechtenstein institution, was to finance this project. Dr. Felder acted as trustee for TRIVAG AG and acquired the land in his own name, but with TRIVAG AG's funds. However, the project was not completed and Dr. Felder died. His heirs requested the opening of bankruptcy proceedings, which was opened on 25 November 1976.
The company Locher & Cie AG, which had worked on the project as a general contractor, filed a request for admission for an amount of 4'192'611.70 CHF, secured by a builder's privilege, as well as for an amount of 333'571.70 CHF for conservation work, secured by a legal privilege. The company also filed a request for admission for an amount of 4'950'000 CHF, secured by mortgage certificates.
The cantonal court rejected the request for admission by the company Locher & Cie AG. The company appealed to the Federal Court, requesting the admission of its request for admission.
Considerations
1. The nullity of mortgage certificates
The Federal Court considered that the mortgage certificates were null and void because they had been used to circumvent the provisions of the law on the acquisition of real estate by individuals domiciled abroad. The court estimated that the acquisition of these mortgage certificates by STIFA Treuhand-Anstalt was an attempt to procure a situation similar to that of ownership of a property located in Switzerland, by evading the provisions of the law.
2. The protection of the good faith third-party acquirer
The Federal Court also considered that the nullity of the mortgage certificates was not opposable to the good faith third-party acquirer. The court estimated that the good faith of the third-party acquirer was protected by articles 865 and 866 of the Swiss CC, which govern the protection of the good faith third-party acquirer…