Facts

Parties:

  • [A.] (appellant), represented by attorney Robert Hadorn
  • [B.] , [C.] , [D.] , [E.] , [F.] , [G.] , [H.] (respondents), all represented by attorney Irene Widmer

Subject: Servitude (construction restriction)

Procedural history:

  • Appeal against the judgment of the Zurich Cantonal Court, I. Civil Chamber, dated June 6, 2019 (LB180042-O/U)
  • Facts: [A.] plans to replace her single-family house with a three-family house, against which several owners of the [I.] strasse nnn-ppp settlement sue.
  • The District Court of Zurich prohibits the construction project and dismisses the counterclaim.
  • The Cantonal Court confirms the prohibition for plaintiffs 1-7 and dismisses the claim of plaintiff 8 due to lack of standing.
  • Appeal to the Federal Supreme Court.

Main issue: Violation of the servitude by the construction project, particularly regarding the roof design and the character of the settlement.

Considerations

The appellant argues that the servitude "construction restriction" is void as it imposes higher or different design requirements than § 238 Abs. 1 PTA/ZH. The cantonal courts have acted unlawfully as superior instances. The Federal Supreme Court rejects this argumentation and confirms the jurisdiction of the cantonal civil courts to examine the compatibility of the construction project with the servitude.

The servitude "construction restriction" was established in 1954 and has not been rendered void by the subsequently enacted public law construction regulation § 238 Abs. 1 PTA/ZH of 1975. The cantonal courts have correctly established that the servitude sets independent requirements and is not congruent with § 238 Abs. 1 PTA/ZH. The servitude can only be extinguished in the procedure under Art. 736 CC, which requires a case-by-case…