Facts
The city of Zurich had filed a lawsuit against X to prohibit her from offering or tolerating sex trade services in the property B. The lawsuit was based on a servitude established in favor of the city of Zurich before the entry into force of the Swiss Civil Code, which prohibited the operation of an immoral business on the encumbered property.
X had been the owner of the property since 1976 and had a tenant who had been operating a sex salon in the first floor since 1995 and also in the second floor since 1999. The building authority of the city of Zurich had rejected the application for a building permit for the change of use.
The district court and the high court of the canton of Zurich had upheld the lawsuit and dismissed the counterclaim. X had then filed a federal appeal and requested that the lawsuit be dismissed and the counterclaim be upheld.
Considerations
The Federal Court dismissed the appeal, insofar as it was entertained. The disputed servitude was not unlawful, as it served the public building and planning law. The fact that public law now contained a corresponding provision did not change the fact that the private law servitude remained valid.
The city of Zurich had not lost all interest in the servitude, as public building law contained a corresponding provision that prohibited the operation of sex trade salons in certain areas. The servitude was not redundant, as it contained a private law prohibition that could not be replaced by public law.
The prohibition on operating an immoral business was…