Builder lien
The builder lien gives the builder in Switzerland a legal lien on the property on which he has performed his work to secure his wage claim . The regulations for this can be found in Art. 837 ff. Civil Code .
requirements
The right to the establishment of the lien arises with the conclusion of the contract for work and services and expires (NEW 10.2011 - Art. 839 para. 2 ZGB) four months after completion of the work. The claim also exists for subcontractors , regardless of whether the landowner knew something about the subcontractor or even excluded it in the contract with the general contractor . As a rule, however, suppliers of building materials or items have no claim, unless these were specially manufactured for construction or are difficult to recycle. Another prerequisite for the establishment of the builder's lien is that the work or delivery must concern the property to be encumbered. The entry must not be made or must be deleted if the landowner has provided sufficient securities. In the case of public land (federal government, canton, municipality), the builders' lien is not valid, so that the community is not hindered by claims under civil law .
The entry in the land register
If the landowner recognizes the claim and the amount of the pledge, the right of pledge can be entered by the owner on the basis of a written land registry registration . A contract is not required for this as it is a legal claim. However, if the landowner does not accept the claim, it must be determined by a court. As this judicial determination does not usually take place within four months, a precautionary application for a provisional entry of the building trades right can be submitted to the competent court. If the court confirms the right to provisional registration, a court order is issued to the land registry . At the same time, the court sets the builder a deadline for civil action for a definitive entry of the lien in the land register.
The property owner
For the landowner, there is no secure protection against the building tradesman's lien unless he pays the claim or provides appropriate security ( e.g. bank guarantee ). The builder must, however, take action and usually obtain a provisional entry in the land register of the lien at the court, since hardly any landowner will allow this voluntarily. The provisional land register entry will not be deleted ex officio, even if - as in many cases - the landowner and the building contractor come to an out of court agreement. It is up to the property owner to take care of it. For this he needs the approval of the building contractor. If he does not receive this, the landowner must assert the deletion in court.
Differences to German law
Under German law, securities for advance payments can only be requested from the respective client (according to §§ 648, 648a BGB). This means that only in a few exceptional cases does the subcontractor have the opportunity to have his claim entered in the client's land register; In the case of multiple tiered contractual relationships, this is in fact impossible. In contrast, under Swiss law, anyone involved in construction can request entry in the property's land register as long as they have only performed construction work and less than four months have passed since the work was completed. This also applies to subcontractors and extensions by the tenant. A contract with the property owner is not required.
