Facts
The appellant, a legal professional, has held since 1997 a general authorisation, renewed annually, issued by the Swiss Tenants' Association (ASLOCA), Vaud section, authorising her to professionally assist and represent tenants before the Conciliation Authority in residential tenancy matters and the Tenancy Court. Since 1998 she has been affiliated with the Vaud Cantonal Compensation Fund for AHV as a self-employed person for her activity as a legal professional.
On 8 and 14 December 2017, then on 13 March 2018, the appellant requested access to the Intercapi subscription, namely the online information system of the land register, allowing her in particular to search for properties by the name of the owners. By decisions of 15 and 23 March 2018, the Department of Finance and External Relations of the Canton of Vaud (DFIRE) rejected the request. On 26 February 2019, the Administrative Law and Public Law Division of the Vaud Cantonal Court (CDAP) dismissed the appeal against that decision.
Seised on 29 March 2019 of an appeal in civil matters and a subsidiary constitutional appeal, the Federal Supreme Court is called upon to examine whether the appellant may obtain extended online access to search by owner name. Observations were not requested.
Main issues: admissibility of the civil appeal route, scope of access to the land register (art. 970 CC, art. 28 LRO), equal treatment (art. 8 Cst.), arbitrariness (art. 9 Cst.), economic freedom (art. 27 and 94 Cst.) and guarantee of property (art. 36 Cst.).
Considerations
On admissibility, the Federal Supreme Court holds that the cantonal decision is a final decision (art. 90 FSCA) and concerns the keeping of the land register, so that the civil appeal is open (art. 72 para. 2 let. b no. 2 FSCA). The erroneous title of the appeal does not prejudice its author. The dispute is of a pecuniary nature, but the question of the amount in dispute of CHF 30,000 may remain open. The subsidiary constitutional appeal is inadmissible given the admissibility of the civil appeal (art. 113 FSCA).
On the access regime, the principle of publicity (art. 970 para. 1 CC) distinguishes data freely accessible (description of the property, name of the owner, type of ownership and date of acquisition, art. 970 para. 2 CC; art. 26 LRO), consultable only in relation to a specific property to exclude serial searches, and other data, for which access requires a legitimate interest, legal or factual, strictly necessary. The cantons may grant extended online access to certain categories of users whose profession allows a legitimate interest worthy of protection to be presumed (art. 949a CC; art. 28 LRO), without proof of interest. This list is exhaustive and includes in particular lawyers registered on the register of lawyers (art. 28 para. 1 let. c LRO), public officers, surveyors, certain authorities, banks, pension funds, insurers and holders of real rights. The Canton of Vaud extended this access to patented business agents by extensive interpretation.
On equal treatment and arbitrariness, the appellant, a professionally qualified representative authorised by ASLOCA, argues that she is in a situation identical to that of patented business agents. The Federal Supreme Court recalls that art. 68 para. 2 let. d CPC authorises professionally qualified representatives before specialised tenancy and employment courts if cantonal law so provides, and that lawyers and patented business agents are subject to training, registration on a register, supervision by an authority (Bar Chamber, Chamber of Patented Business Agents), oath and professional secrecy. The appellant, by contrast, is subject only to art. 394 et seq. CO and to the supervision of a private law association, ASLOCA. However, subjection…