Legal basis
Under Article 712a et seq. of the Swiss Civil Code (ZGB), condominium ownership constitutes a share of co-ownership in a property, granting the co-owner the exclusive right to use and fit out specific parts of a building.
Thus, a condominium owner holds a co-ownership share in the entire property and has a special right to certain rooms. This special right entitles them to use the relevant flat or rooms exclusively and to carry out interior fittings.
Common areas
Under Article 712b para. 2 no. 1 of the Swiss Civil Code, the land on which a property subject to condominium ownership stands forms part of the common areas. This means that gardens, seating areas or outdoor parking spaces are jointly owned by all owners and – unless otherwise provided for in the condominium regulations – may be used by all.
The following parts are mandatorily common property and cannot be altered by the condominium regulations (Art. 712b para. 2 Swiss Civil Code):
- Land: Both the land beneath the building and undeveloped areas such as gardens, car parking spaces, carports or children’s play areas belong jointly to all owners. However, exclusive rights of use may be granted in respect of undeveloped land.
- Essential building components: Load-bearing structures such as foundations, floor and ceiling elements, load-bearing walls and the roof
- Building components that determine the external form and appearance of the building, such as window sills, window grilles, entrance doors or the external plasterwork.
- Common facilities and installations intended for use by all flat owners, such as stairwells, lifts, pipework, central heating systems, ventilation systems or laundry rooms.
Special legal status
For a unit to qualify for special legal status, three conditions must be met:
- Economic unit:
The premises must be capable of fulfilling a specific purpose independently (e.g. a flat, an office or commercial premises). Flats, for example, require basic infrastructure such as sanitary facilities.
- Separation:
The unit must be clearly separated structurally, i.e. completely separated from other units and communal areas by walls, floors and ceilings.
- Private access:
The unit must be accessible without having to enter spaces subject to the exclusive rights of other owners. Access is usually via communal areas such as stairwells or corridors.
Exclusive Use
The mandatory classification of a unit as part of the common areas does not preclude parts of such units from being allocated to a condominium owner for exclusive use – and thus for sole use – through the creation of an easement or by regulatory allocation. These are common parts of the property that are subject to a right of exclusive use. For example, the garden of a ground-floor flat may be allocated to a specific owner for their exclusive use.
Condominium Regulations
Condominium regulations help to prevent disputes and misunderstandings within the condominium owners’ association. They may contain provisions that supplement or clarify the law. The regulations should specify as clearly as possible which parts of the building are subject to special rights, which special rights exist, and which parts of the building are communal.
Should you have any questions regarding condominium ownership or require assistance in drafting condominium regulations, the attorneys-at-law of Pilatushof AG will be pleased to assist you.