Facts

Parties and instances: The appellants are [A. AG] and the heirs' community of [B.] , who died on 8 August 2018 (landowners). The respondent is the Bank [X.] . The prior instance was the Zurich Higher Court, II Civil Chamber, judgment of 8 April 2021 (LB210001-O/U). The Federal Supreme Court ruled on 28 January 2022 (5A_373/2021).

Facts:

  • The predecessors of the landowners granted Bank [Y.] an independent and permanent building right by building right contract of 11 October 1985 (effective from 1 April 1986, term 100 years). An indexed building right ground rent of CHF 2,000,000.-- per year was agreed.
  • On 22 February 1988, Bank [Y.] established condominium ownership and sold three units (50/100 co-ownership) to Bank [X.] . Clause 11 of the purchase agreement provided that the buyer would enter the building right contract with a half share and assume half of the building right ground rent.
  • By administration agreement of 29 March 1988, Bank [X.] took over the administration; according to clause 2.5, the building right ground rent was excluded from the common costs.
  • On 17 December 2014, Bank [X.] sold its three units to [Z. AG] , based in [W.] , and transferred to it the obligation to pay the building right ground rent.
  • On 28 April 2016, Bank [X.] brought a negative declaratory action against the landowners and requested that no building right ground rent be owed to it from the registration of [Z. AG] . The Zurich District Court granted the action on 3 November 2020. The Higher Court dismissed the landowners' appeal on 8 April 2021.
  • In parallel, the landowners had conducted conciliation proceedings and an action against Bank [Y.] . In a settlement of 28 October 2020, Bank [Y.] transferred its three units to the landowners for CHF 23 million and assigned to them all claims arising from the purchase agreement against Bank [X.] , in particular those under clause 11.

Requests before the Federal Supreme Court: The landowners requested annulment of the Higher Court's decision and dismissal of the action, alternatively remittal. The suspensive effect was denied by order of 31 May 2021. New exhibits of 6 August 2021 were filed after the expiry of the appeal period.

Amount in dispute: CHF 57,034,971.10 (payment claim until 2086).

Considerations

Admissibility and scope of review: The appeal in civil matters is admissible against a decision of a last cantonal instance (Art. 75, 72 para. 1, 74 para. 1 let. b FSCA). The amount in dispute exceeding CHF 30,000.-- is met. The Federal Supreme Court examines the application of law freely, but is bound by the established facts (Art. 105 para. 1 FSCA), and reviews challenges to the facts only in cases of manifest inaccuracy within the meaning of Art. 97 para. 1 FSCA, under the strict principle of complaint. Under Art. 99 para. 1 FSCA, true novas that are inadmissible, in particular the exhibits filed on 6 August 2021, remain disregarded.

Interest in a declaration (Art. 88 CPC): A protectable interest exists where legal relations are uncertain and their continuation cannot reasonably be expected. Given the amount of approximately CHF 57 million over approximately 65 years, this uncertainty cannot reasonably be imposed on Bank [X.] . The declaratory action is also not subsidiary to an action for performance, since the creditor could not yet sue. The Higher Court therefore correctly affirmed the interest in a declaration.

Statutory legal position: The building right ground rent is a personal counter-performance that becomes a real obligation only with a note in the land register (Art. 779a para. 2 CC). Without such a note, the obligation to pay interest does not pass automatically to the acquirer upon alienation; the alienating building right holder is not released without the consent of the landowner. The community of condominium owners is liable ex lege for the building right ground rent as a common burden (Art. 712h CC; BGE 117 II 40). A direct, proportionate liability of the individual condominium owners is not provided for by law. Therefore, on the basis of the law alone, Bank [X.] never became the direct debtor of the building right ground rent, regardless of whether the landowners consented to the change of debtor. Whether an anticipated consent may be assumed could remain open.

Contractual obligation (clause 11 of the purchase agreement): The landowners argued that the building right ground rent had contractually been excluded from the common costs, which would result in an accession of debt. This was rejected: there is no legal basis under which condominium owners could unilaterally exempt third parties from the common burdens, and there is no genuine contract for…