The Swiss legal system recognizes a variety of rights to real estate, differing in scope and nature. Among these, limited rights occupy a special place in the legal system. These rights, which do not confer full ownership but only certain specific prerogatives over real estate, are governed primarily by the Swiss Civil Code. They enable their holders to exercise defined powers over the property of others, creating a subtle balance between the interests of the owner and those of the beneficiary of the limited right. This rich and complex legal category includes easements, encumbrances, mortgages and distinct and permanent rights. Understanding them is essential for property owners, investors and real estate practitioners in Switzerland.
Limited rights to real estate in Switzerland are based primarily on the Swiss Civil Code (CC), and more specifically on the section devoted to rights in rem. These rights are part of a legal tradition that dates back to Roman law and was codified with the adoption of the Swiss Civil Code in 1907, which came into force in 1912.
The Swiss system of rights in rem is based on the numerus clausus principle, according to which only those rights expressly provided for by law may be constituted. This limitation is intended to guarantee legal certainty and transparency in real estate relations. Limited rights in real estate are part of this logic, and are strictly regulated by legal provisions.
The Swiss Civil Code organizes these rights according to a precise hierarchy. Article 641 CC first defines ownership as the right to freely dispose of a thing within the limits of the law. Limited rights then restrict ownership by conferring on a third party certain prerogatives over the property.
There are several fundamental principles governing limited rights to real estate in Switzerland:
The creation of a limited right to a property generally requires two elements: a title of acquisition (contract, court decision, etc.) and a method of acquisition (entry in the land register). This dual requirement reinforces legal certainty in real estate matters.
The land register plays a central role in the system of limited rights to real estate. Maintained by cantonal offices, it confers a presumption of accuracy on the rights registered in it (art. 9 CC). This presumption is reinforced by the principle of public faith in the land register (art. 973 CC), which protects bona fide third parties who rely on entries.
Cantonal legislation sometimes supplements the federal framework, particularly with regard to certain registration procedures or the exercise of limited rights. However, the substantive law relating to these rights is primarily a federal matter, ensuring uniformity throughout Switzerland.
Servitudes are a fundamental category of limited rights over real estate in Switzerland. Governed by articles 730 to 792 of the Swiss Civil Code, they are defined as encumbrances imposed on a property (servient land) in favor of either another property (servitude foncière) or a specific person (servitude personnelle).
A servitude establishes a relationship between two properties: the dominant property, which benefits from the servitude, and the servient property, which supports it. It confers on the owner of the dominant land the right to use the servient land in a specific way, or to prohibit the owner of the servient land from carrying out certain acts of disposal.
The most common land easements in practice are :
The main feature of a servitude foncière is its perpetuity. It is attached to land and not to persons, which means that it subsists despite changes in ownership. It is extinguished only in cases provided for by law, such as confusion (reunification of two properties under the same owner) or removal from the land register with the agreement of the parties concerned.
Unlike servitudes over land, personal servitudes are created in favor of a specific individual or legal entity, rather than a piece of land. They mainly comprise :
Usufruct is particularly significant in practice. It allows the usufructuary to use the property and to receive the fruits (rent, for example), but he or she must respect the destination of the property and keep it in good condition. Usufruct is generally granted for a fixed period, or for the life of the usufructuary.
Building rights deserve particular attention because of their practical importance. It separates ownership of the land from ownership of the buildings on it. Qualified as a distinct and permanent right (DDP) when constituted for at least 30 years, it can be registered as a building in the land register and be the subject of separate transactions (sale, mortgage, etc.).
The creation of easements generally requires an authenticated deed and an entry in the land register. Easements must be exercised with care, taking into account the legitimate interests of the owner of the servient land. In the event of abuse or a change in circumstances making the easement particularly onerous, the owner of the servient land may request a judicial modification.
Property pledges are a major category of limited rights to real estate in Switzerland. They make it possible to secure a debt by assigning a property to its repayment. The Swiss Civil Code (art. 793 to 915) distinguishes between three main forms of real estate lien: mortgage, cédule hypothécaire and lettre de rente.
Mortgages are the classic form of property pledge. It is characterized by its accessoriality: it is inseparably linked to the claim it secures. The mortgage follows the fate of the claim and cannot be assigned independently of it.
In Switzerland, there are several different types of mortgage:
Among the legal mortgages is the artisans’ and contractors’ mortgage (art. 837 al. 1 ch. 3 CC), which guarantees their claims arising from work carried out on the property. To be valid, this mortgage must be entered in the land register within four months of completion of the work.
The cédule hypothécaire (art. 842 to 865 CC) represents a modern development of the right of pledge on real estate. Unlike mortgages, it is not ancillary to a specific claim. It creates a personal claim secured by a pledge of real estate, making it highly flexible in use.
Since the revision of real estate law that came into effect in 2012, the cédule hypothécaire can take two forms:
Register mortgage notes have become the standard form, simpler and less costly. It is transferred by simple entry in the land register, without the need to handle a physical title.
In practice, the cédule hypothécaire is widely used to secure bank loans for the acquisition or construction of real estate. It can be set up for an amount greater than the current debt, enabling it to be used to secure future loans without additional set-up costs.
A lettre de rente (art. 847 to 851 of the Swiss Civil Code) is a special form of real estate lien that secures a claim consisting of a periodic annuity. Unlike mortgages and cédule hypothécaires, it does not guarantee a capital sum, but rather periodic benefits.
In contemporary practice, the lettre de rente has become very rare, having been largely supplanted by other forms of real estate lien. Nevertheless, it remains of theoretical and historical interest in the Swiss system of real rights.
Property pledges are subject to the principle of speciality (they must relate to a specific property) and the principle of publicity (they must be entered in the land register to be validly constituted). They give the creditor a preferential right in the event of forced realization of the property, and follow the property in the event of a change of ownership.
The building right, when constituted as a distinct and permanent right (DDP), merits in-depth analysis because of its complexity and practical importance in the Swiss real estate landscape. Governed by Articles 779 to 779l of the Swiss Civil Code, the DDP is a remarkable exception to the principle of accession, according to which the owner of a plot of land normally owns the buildings on it.
The distinct and permanent right is a surface right that meets the following conditions:
This registration confers a special legal status on the DDP: although it is a limited right over another person’s property, it is itself considered a property in the legal sense. This legal fiction has far-reaching consequences, since it allows the superficiary (holder of the PDD) to dispose of his right as if it were an ordinary building: he can sell it, mortgage it or encumber it with other limited real rights.
The PDD thus creates a form of horizontal condominium ownership, in which ownership of the land and buildings are dissociated, unlike vertical condominium ownership (PPE), which divides a building into lots.
The creation of a PDD requires an authenticated deed and an entry in the land register. The building contract precisely defines the rights and obligations of the parties and may contain various clauses, including :
The building lease fee represents the financial consideration for the right granted. It may be fixed as a single amount or, more frequently, as a periodic annuity. The amount is generally calculated according to the value of the land, and may be indexed to take account of inflation.
The PDD is widely used in Switzerland in a variety of situations:
A PDD offers several advantages for all parties involved. For the landowner, it enables him to retain ownership of the land while receiving a regular income. For the superficiary, it reduces the initial investment by avoiding the purchase of the land, which can facilitate the realization of real estate projects.
The limited duration of a PDD can, however, create financing difficulties as the term approaches. Financial institutions tend to progressively reduce the amount of loans granted, and the market value of the PDD also decreases. This problem, known as theguillotine effect, needs to be anticipated in long-term planning.
In addition to easements and mortgages, Swiss law recognizes other categories of limited rights over real estate, including land charges and certain specific rights that deserve particular attention because of their impact on real estate ownership.
A charge foncière, governed by articles 782 to 792 of the Swiss Civil Code, is a real right that obliges the owner of a property to provide a positive service to a beneficiary. It differs from an easement, which generally imposes a passive obligation (to tolerate or abstain).
Main features of the land charge :
In practice, land charges can take various forms, including :
Although less common than easements or mortgages, encumbrances are still of practical use in certain specific situations, particularly in rural areas or to organize complex neighborhood relationships.
These rights, which confer on their holder certain prerogatives concerning the acquisition of a property, can be constituted as limited real rights when they are recorded in the land register.
The right of pre-emption (art. 681 CC and 216 CO) gives its holder the right to acquire a property in preference to any other buyer, if the owner decides to sell it. There are legal pre-emptive rights (notably in favor of co-owners or close relatives) and contractual pre-emptive rights.
The right of emption enables its holder to acquire a property by means of a unilateral declaration of intent, without the owner having declared his intention to sell. The price and conditions are generally fixed in advance.
The right of repurchase authorizes a seller to repurchase the property he has sold, within a specified period and under predefined conditions.
These rights, when recorded in the land register, are enforceable against any purchaser of the property. Their maximum duration is limited by law: 25 years for conventional pre-emptive rights, 10 years for rights of emption and réméré.
Although they do not constitute limited rights in the strict sense of private law, public law restrictions on land ownership play a considerable role in defining the prerogatives of property owners in Switzerland.
These restrictions stem from a variety of legislation:
Some of these restrictions may be recorded in the land register, making them more effective against third parties. Coordination between these public law restrictions and limited private law rights represents a major challenge for real estate law practitioners.
The practical application of these rules often requires an in-depth analysis of the specific situation, and a precise knowledge of federal, cantonal and municipal law. A specialist lawyer can provide the advice needed to navigate this complex legal framework and secure real estate transactions.
The management of limited rights to real estate in Switzerland raises significant practical issues for both owners and beneficiaries of these rights. The legal, economic and tax implications require a methodical approach and in-depth knowledge of the applicable legal framework.
Limited rights to real estate have a direct impact on the value of the property concerned. A property encumbered by numerous easements or building rights can see its market value considerably reduced. Conversely, a property benefiting from advantageous easements (right of way, right of view) may become more attractive.
For real estate investors, prior analysis of the limited rights encumbering a property is therefore fundamental. This analysis should cover :
The financing of properties encumbered by limited rights has its own specificities. Banking institutions take these rights into account when valuing the property and determining the terms of the loan. For example, a building right due to expire in the near future may make it difficult to obtain a long-term mortgage.
The tax treatment of limited rights varies according to their nature and cantonal legislation. The main tax implications include :
Proper tax planning can optimize the chosen legal structure and minimize the overall tax burden.
Limited rights to buildings are frequently the source of disputes between owners and beneficiaries. These disputes may concern :
Conflicts can be resolved in a variety of ways: direct negotiation, mediation or legal proceedings. The services of a lawyer specialized in real estate law often enable pragmatic and lasting solutions to be found, thus avoiding lengthy and costly legal proceedings.
The practice of limited rights on real estate is constantly evolving, influenced by social, economic and technological developments. Current trends include :
In view of these developments, specialized legal advice is becoming increasingly important. A lawyer who is an expert in real estate law can provide considerable added value, both in the design and drafting of constitutive deeds, and in the day-to-day management or resolution of disputes.
The digitization of the land register, which is gradually being implemented in Swiss cantons, is also transforming the management of limited rights by facilitating access to information and simplifying certain procedures. However, this modernization brings with it new challenges in terms of data protection and cybersecurity.
Ultimately, managing limited rights to real estate requires a multi-disciplinary approach, combining legal expertise, economic vision and an understanding of practical issues. This complexity fully justifies the use of specialized professionals to secure transactions and optimize the management of real estate assets.
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