Construction law (Switzerland)
In Swiss private law , building right means that a landowner grants a building right holder the right to build on (or under) his land for a limited period of time. That is why it is also known as "temporary land purchase". The same term is used in private building law in Austria , while in Germany it is referred to as heritable building law.
content
Building law is the right to use a piece of land for a certain period of time in exchange for payment of interest . The building law has the advantage for the landowner that - unlike a sale - he remains the owner of the land. When concluding a building lease agreement, the issuer of building rights waives its own use for the specified period. The building rights holder can erect a building on it, which becomes his property. Once the development has been completed, the management is the sole responsibility of the owner of the building permit.
In return, the grantor of building rights receives an amount determined in advance, the building rights interest , as payment for making his property - the land - available. The building lease interest is usually to be paid annually; it is adapted to the current conditions at certain intervals. An important parameter for calculating the building lease interest is the determination of the land value.
The content of a building right contract can be freely determined. Here, the building authority can influence the type of development. For example, the public sector, as the issuer of building rights, can demand that family-friendly apartments at reasonable prices must be built on land that is given in the building rights. Depending on the determination of the land value, the building law can be used to promote non-profit building, for example.
The building right is transferable and inheritable. Once it has been publicly notarized, it can also be entered in the land register and thus sold, given away or encumbered with real estate liens such as a mortgage and easements . Changes to the building right contract during the term of the contract require a consensus of both contracting parties.
Building law is also increasingly being applied to private property owners. Because he does not buy the land, the building rights holder usually benefits from a lower mortgage rate, as he only has to take out loans for the buildings, but not for the land purchase.
Legal basis
Construction law is regulated in Articles 675 and 779 of the Swiss Civil Code (ZGB) .
Terms
The legal maximum duration of building rights in Switzerland is 100 years. With a term of at least 30 years, one speaks of a "permanent easement". A typical contract term for residential use is 50 years, with the option of up to two extensions of 15 to 25 years each. An extension of up to 100 years is also possible.
Reversion
At the end of the stipulated term, the building becomes the property of the landowner, which is referred to as a " reversion ". To this end, he has to “pay the previous authorized building contractor appropriate compensation for the buildings that are falling down” (ZGB, Art. 779d). Usually this is numbered in advance or otherwise regulated. The reversal compensation is often based on the building value. As a result of the reversal, the grantor of building rights retains the design sovereignty over the area given in the building law in the long term.
If the owner of the building right violates his contractual obligations, the landowner can demand that the building right be withdrawn before the contract expires. In this case, too, he has to pay compensation for the buildings.
Zurich model and Basel model
With the so-called "Zurich model", the building rights holder pays the equivalent of the future building rights interest owed once. The advantage here is that the exact interest costs are known for the entire term.
The so-called “Basel model” or “partnership model” aims to ensure that building rights holders and landowners are equal partners. Based on the calculated earnings potential, both partners should generate the same net return on their capital investments. The building lease rate is determined in advance using a formula and is usually adjusted every ten years.
Political Initiatives
Since the middle of the 20th century there have been repeated political advances against land speculation from the people at the national level and later, in 1997, for the spread and increased application of building law. Specifically, these were the popular initiatives Protection of the soil and work through the prevention of speculation (1943/50), Land speculation initiative (1962/67), City- Rural Initiative (1981/88), Against the sellout of homeland (1978 / 84) as well as real estate changes into usage and building rights (1997/98). None of these popular initiatives found a majority, however, and the latter already failed at the signature-gathering stage.
In 2015, the Basel New Soil Initiative was launched at cantonal level - keep soil and shape Basel! conditions. This was done after a first initiative with a broader content, which was withdrawn by the initiators themselves at the beginning of 2014, before the vote. The new soil initiative demanded that the canton no longer sell its soil, but keep it in principle and, if so, then only give it up under building rights. The formulated initiative literally corresponded to the counter-proposal of the government council to the first soil initiative. In the vote on February 28, 2016, it became law with 67% yes-votes. A new counter-proposal from the government was not put to the vote.
In the municipality of Emmen in canton Lucerne in February 2015, came bottom Initiative - soil retain Emmen make! conditions. The local council rejected this initiative, so that it too came to a vote directly in front of the people on February 28, 2016 and was narrowly accepted there. After Basel, soil initiatives were voted on in two other cities and were each adopted with a large majority: Lucerne (2017) and Winterthur (2018).
The Swiss-wide information network common property soil , founded in 2013, advocates greater awareness and dissemination of building law as a land law instrument and has drawn up practical recommendations for municipalities and non-profit housing developers.
Web links
Individual evidence
- ↑ New Soil Initiative Basel
- ↑ Voting result on February 28, 2016 Basel-Stadt
- ↑ Voting result on February 28, 2016, Municipality of Emmen
- ↑ Heinz Girschweiler: Keeping the soil, shaping cities and communities - local soil initiatives following the Basel initiative. In: Birgitta Gerber and Ulrich Kriese (eds.): Keeping the ground - shaping the city. Zurich 2019, pp. 344–374.
- ^ Website of the soil as a commons
- ↑ Team of authors of the information network for the common good of soil: elements of a fair building right contract between municipalities and non-profit housing developers. In: Birgitta Gerber and Ulrich Kriese (eds.): Keeping the ground - shaping the city. Zurich 2019, pp. 189–205.
