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Rights and registration

Rights

What types of holding right over real estate are acknowledged by law in your jurisdiction?

‘Immovable property’ is defined as:

  • parcels of land and the buildings thereon;
  • independent and permanent rights included in the land register;
  • mines; and
  • co-ownership shares in immovable property.

The following ownership rights over immovable property exist:

  • Sole ownership – the sole owner of an immovable property can determine its use, conversion, encumbrance or sale. However, its rights are limited by public law, such as building, planning and environmental law, or by private law, such as neighbouring rights, mortgages or contractual agreements.
  • Co-ownership – co-owners acquire and own an immovable property on a pro-rata basis. Each co-owner has the rights and obligations of a sole owner for its share and can therefore sell or pledge this share, but not the immovable property itself. All co-owners must decide jointly on actions concerning the joint property (eg, conversion, sale or rent), whereby a majority decision corresponding to the shares to which the co-owners are entitled is usually sufficient.
  • Joint ownership – joint owners are bound by law (eg, community of heirs) or by contract to form a community and acquire immovable property by virtue of their community. The sale, reconstruction, encumbrance or rent of the property can take place only with the consent of all persons within the community.
  • Condominium ownership – condominium ownership is a specially designed form of co-ownership which grants the individual co-owners a special right to the exclusive use and design of a self-contained room (eg, an apartment in a block of flats). The condominium owner is therefore the owner of its apartment and can decide on the use and design of its apartment alone. When it comes to uses or designs that affect all property owners (eg, roof, load-bearing walls or staircases), all parties must be involved in the decision making together. However, a majority decision is usually sufficient.

Are rights to land and buildings on the land legally separable? 

As a rule, a building constructed on a parcel of land becomes the property of the owner of that land. However, there is an exception. Building rights grant the rights holder permission to erect a building on another party's land and freely dispose of any buildings. Such a building right can be established only as a so-called ‘independent and permanent right’ for a limited period of between 30 and 100 years and must be registered as immovable property in the land register.

Which parties may hold and exercise rights over real estate? Are there restrictions on foreign ownership of property?

In principle, any natural person or legal entity can acquire real estate in Switzerland. However, natural persons or legal entities based overseas require a state permit to do so. No permit is required if the person abroad uses the property as a permanent establishment, business or main residence.                       

How are rights, encumbrances and other interests over real estate prioritised?

Any and all immovable property and the associated rights and encumbrances are entered in the land register. In general, the principle-of-age priority applies, meaning that older rights take precedence over newer rights. In addition, legal servitudes (eg, emergency access rights) take precedence over other rights.

Registration

Must real estate rights, interests and transactions be registered in your jurisdiction? What are the legal effects of registration?

All immovable property and the rights associated therein must be registered in the land register of the community or district where the property is located. Registration in the land register is a prerequisite for the acquisition of real estate (ie, ownership passes to the acquirer only upon registration in the land register).

What are the procedural and documentary requirements for entry into the national real estate register(s)? Can registration be completed electronically?

In principle, applications for entry in the land register must be made in writing by the seller. In particular, the publicly notarised purchase contract and copies of the passports of the seller and the acquirer must be submitted with the application. It depends on the cantonal law applicable where the property is located whether the registration may be made in electronic form with a qualified electronic signature via an appropriate delivery platform.

What information is recorded in the national real estate register(s) and to what extent is such information publicly available?

All rights and encumbrances connected with immovable property are recorded in the land register. In addition, the documents for registration (eg, a purchase contract) are kept with the land register for an unlimited period. The land register is generally open to the public in Switzerland. Anyone is entitled to obtain information concerning:

  • the name and description of immovable property;
  • the name of the property owner;
  • the form of ownership; and
  • the date of acquisition.

In addition, on substantiation of interest, the land register can be inspected or an excerpt can be obtained.

Is there a state guarantee of title?

An entry in the land register is a state guarantee of ownership (ie, everything that appears in the land register applies in principle and applies to everyone, meaning that persons may rely on the information in the land register and assume that it is correct). The information in the land register is considered correct and complete regarding a bona fide purchaser. Anyone who has relied in good faith on an entry in the land register and subsequently acquired property or other rights in rem is therefore protected with regard to their acquisition. However, if the entry is unjustified and the third party knew or should have known of this defect, the acquirer will not have acted in good faith and therefore cannot invoke the land register entry.

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