Real estate disputes cover a wide variety of conflictual situations: defects discovered after the purchase of a property, neighbourhood nuisances, contestations relating to servitudes or limited real rights, statutory mortgages registered by unpaid contractors, disputes in PPE condominium ownership. PBM Avocats represents its clients before the civil and administrative courts of Geneva and Lausanne, systematically seeking the fastest and most economical solution before engaging in judicial proceedings.
Hidden Defects and Vendor's Warranty (art. 197-210 CO)
The purchaser of a property benefits from a statutory warranty for defects in the thing sold, whether they are apparent defects or hidden defects. Arts. 197 to 210 CO, applicable to real estate sales by reference to art. 221 CO, govern this warranty. A defect is hidden when it was not detectable by ordinary examination at the time of the transfer of ownership. Among the most frequently encountered hidden defects in real estate matters: structural dampness, soil contamination, foundation problems, asbestos, defective electrical or sanitary installations that were not disclosed.
Upon the discovery of a defect, the buyer must notify the seller without delay (art. 201 CO applicable by reference), then decide on the action to be brought: reduction of the sale price (actio quanti minoris), rescission of the contract (actio redhibitoria) or compensation for damage if the seller is at fault. These actions must be brought within the forfeiture period of two years from entry in the land registry (art. 219 para. 3 CO), or ten years in the event of fraud. The speed of reaction is therefore decisive. PBM Avocats intervenes upon the discovery of the defect to document the damage, notify the seller and bring the action within the deadlines.
Neighbourhood Nuisances and Neighbour Relations Law (art. 684 CC)
Art. 684 CC establishes the principle that owners of neighbouring land have a duty to show mutual consideration in the exercise of their rights, in particular by refraining from any excessive intrusion that would exceed the limits of mutual tolerance determined by local usage. The intrusions concerned may be physical (noise, smoke, odours, vibrations, intense light, cast shadow) or immaterial (electromagnetic waves).
The assessment of the excessive nature of the intrusion takes into account the local situation — an industrial zone tolerates more noise than a residential zone — and the nature of the use exercised. Disturbances caused by legally authorised construction may nevertheless justify compensation if the damage is serious and particular. The action for cessation of nuisances (art. 679 CC) is available to anyone who suffers or risks suffering an unlawful disturbance to their property; it may be accompanied by a claim for damages and moral harm. PBM Avocats assesses the merits of your situation and represents you in negotiations and, if necessary, before the courts.
Land Servitudes and Limited Real Rights
Land servitudes (art. 730-744 CC) are real rights that encumber one property for the benefit of another. They are entered in the land registry and are transferred with the properties in the event of sale. The most common servitudes are rights of way (on foot or for vehicles), rights of view, rights to draw water, rights not to build or not to exceed a certain height. Disputes frequently arise over their exact extent, their concrete exercise and their extinction through non-use or by agreement of the parties.
Alongside conventional servitudes, the law provides for statutory servitudes that arise directly from the situation of the land: the right to a necessary passage (art. 694 CC) in favour of the owner of enclosed land, statutory distances between buildings, the right of enclosure. In the event of disagreement over the existence, extent or exercise of a servitude, PBM Avocats analyses the constitutive title, examines the land registry extract and, if necessary, brings a declaratory or enforcement action before the competent civil courts.
Statutory Mortgages and Real Estate Securities
Art. 837 CC enumerates the statutory mortgages that may be entered in the land registry without any agreement between the parties. In addition to the statutory mortgage of contractors and tradespeople (art. 837 para. 1 no. 3 CC), the Civil Code recognises the vendor's statutory mortgage (art. 837 para. 1 no. 1 CC) and that of co-heirs in the event of a succession partition (art. 837 para. 1 no. 2 CC). These mortgages secure specific claims and rank from the date of their entry in the land registry.
In practice, the statutory mortgages of contractors constitute one of the main sources of disputes in the construction sector. A buyer who acquires a recently built property may find it encumbered by statutory mortgages entered after the acquisition, if the developer or client has not paid the intervening companies. To protect against this, the status of outstanding claims must be systematically checked before signing the sale agreement. PBM Avocats advises buyers, owners and contractors on their rights and obligations in this area.
Frequently Asked Questions on Real Estate Disputes
What is the deadline for bringing a hidden defects warranty claim after a real estate purchase?
According to art. 219 para. 3 CO referring to art. 210 CO, the buyer must check the condition of the property and notify the seller immediately of any defect discovered. For hidden defects, the warranty action must be brought within two years of the transfer of ownership (entry in the land registry), failing which the right is forfeited. This deadline is extended to ten years when the seller fraudulently concealed the defect (art. 210 para. 6 CO). It is therefore essential to act quickly upon the discovery of a defect, by contacting a lawyer to assess the options — price reduction, rescission of the contract or repair.
What is a neighbourhood nuisance and what remedies are available?
Art. 684 CC prohibits the owner of land from excessively disturbing their neighbours by emissions, noises, vibrations, radiation or other nuisances resulting from the use of their land, when these exceed the limits of mutual tolerance between neighbouring landowners having regard to local usage. The measure of excess is assessed objectively according to the local situation and the actual use of the land. The aggrieved neighbour may bring an action for cessation of the nuisances (actio negatoria, art. 679 CC), for compensation for damage and, in certain cases, for rent reduction if the property is leased. A prior formal notice is recommended before any legal action.
What is a servitude and how can its extent be contested?
A servitude is a limited real right that requires the owner of land (the servient tenement) to tolerate certain acts by a third party or to refrain from exercising certain rights (art. 730 ff CC). Its extent is determined first by its entry in the land registry and, second, by its constitutive title. In the event of a dispute over the extent or exercise of a servitude, the judge interprets the constitutive title in accordance with the principle in dubio mitius — in case of doubt, the servitude is interpreted in the sense least burdensome to the servient tenement. Modification or extinction of the servitude generally requires the agreement of the owners of both plots and a new entry in the land registry.
What is the statutory mortgage of contractors and how can it be asserted?
Art. 837 para. 1 no. 3 CC grants contractors and tradespeople who participated in the construction or renovation of a property the right to request entry of a statutory mortgage on the land, up to the value of their works, even without the prior agreement of the owner. This right must be exercised by an application to the land registry within four months of the completion of works (art. 839 para. 2 CC). The registered statutory mortgage ranks from the date of its entry and secures the contractor's claim in the event of the client's insolvency. The owner may avoid registration by providing equivalent security (art. 839 para. 3 CC).
Is mediation possible in real estate disputes?
Yes. In real estate disputes, mediation is an alternative dispute resolution route that offers numerous advantages: speed, confidentiality, preservation of relations between neighbours or co-owners and cost control. In Switzerland, the Code of Civil Procedure (CPC) provides for a mandatory conciliation procedure before the conciliation authority at the competent forum before any ordinary judicial action (art. 197 ff CPC). Certain cantons, including Geneva and Vaud, have specialised conciliation authorities for real estate and tenancy disputes. Mediation is distinct from conciliation: it is voluntary and involves a neutral mediator chosen by the parties. PBM Avocats advises you on the best route adapted to your situation.