Introduction
Whether buying, financing or developing a property: anyone dealing with real estate in Switzerland cannot avoid the land register. It is the central register for property rights and forms the basis for legal certainty and trust in real estate transactions. However, although the land register offers a high degree of reliability, it does not guarantee absolute security in every case. In this insight, we provide a compact overview of the most important issues relating to the land register – and show when legal assistance is essential.
What is in the land register and how is it structured?
The Swiss land register is based on the so-called real-folder system. A separate land register sheet is kept for each property, with a unique number. This ensures clarity and legal unambiguity. Only property rights such as ownership, easements, real burdens and mortgages in the form of mortgage contracts, mortgage certificate on paper or registered mortgage certificates are recorded in the land register. The system is supplemented by priority notices (e.g. for purchase or repurchase rights) and noting, e.g. for building prohibitions or restrictions on disposal.
However, purely compulsory rights, such as rental agreements, and family law relationships do not appear in the land register unless they are relevant under land register law. An exception to this is, for example, the noting on the participation in acquired property. The legal basis for the content and structure of the land register can be found in Art. 946 et seqq. Swiss Civil Code (“SCC”).
How do registration, priority notice and noting in the land register work and what role does the notary play?
The registration of a right in rem generally requires a publicly notarized legal transaction, which is usually carried out by a notary. Once the deed has been submitted to the land registry, it is checked for material defects and then entered in the land register. The absolute registration principle pursuant to Art. 971 para. 1 SCC is decisive here: Rights in rem to real estate only arise, change or expire upon entry in the land register.
Priority notices, on the other hand, concern personal rights, for example an agreed right of first refusal, and have a special effect compared to rights registered at a later date, provided the legal requirements are met (see Art. 959 et seqq. SCC). Noting, on the other hand, do not create independent rights, but refer to legally significant circumstances (see Art. 962 SCC). Their function is to provide information and disclosure, for example in the case of building prohibitions under public law or restrictions on disposal under private law.
The duration of a registration depends on the canton and the complexity of the process. It can range from a few days to several weeks. Early notarial preparation is therefore not only recommended, but in many cases crucial.
Why is the land register so important and what does legal force mean?
The land register forms the backbone of legal certainty in real estate transactions. It creates transparency for purchasers, investors and banks – in particular through the so-called positive and negative legal force. Positive legal force means that someone who relies in good faith on an entry in the land register is protected by this entry (see Art. 973 para. 1 SCC). For example, anyone who acquires a property and relies on the current entry becomes the owner, even if it later transpires that the entry was materially incorrect.
Negative legal force in turn allows third parties to trust that the land register is complete (see Art. 971 para. 1 SCC). If an entry is missing, it can generally be assumed that the corresponding right does not exist. But be careful: both protection mechanisms only apply under certain conditions. Anyone who knows the true facts or could have recognized them with reasonable care does not enjoy this protection of confidence. The land register is therefore a powerful but not an infallible instrument.
Who is allowed to obtain information or consult the land register and what is the difference?
The Swiss Civil Code makes a clear distinction between information and consultation. Anyone can obtain simple information about the data entered in the main register, such as ownership relationships or easements, without having to prove a particular legitimate interest (Art. 970 para. 2 SCC). For a comprehensive consultation, however, which also includes receipts, plans, journal and other supporting documents and implementing ordinances, a legitimate interest is required (see Art. 970 Para. 1 SCC).
Such an interest may be of an economic, scientific, personal or family nature – for example in the context of a purchase intention, debt enforcement or in the context of legal advice. In many cantons, it is also possible for lawyers to gain access electronically, subject to approval. It is always crucial that access to sensitive information remains proportionate and objectively justified.
When can the land register be misleading and when is there no protection of legitimate expectations?
Despite its systematic nature, the land register is not always a true reflection of legal reality. For example, there are cases in which the registered amount of a mortgage certificate is higher than the actual mortgage debt, which can lead to incorrect assumptions about the encumbrance of a property. In addition, the law permits a change of creditor for mortgage certificate on paper and mortgage contracts even without an entry in the land register, which is based on the so-called relative registration principle.
The situation is completely different with the registered mortgage certificate: The absolute registration principle applies here, and a change of creditor is only valid with an entry. Caution is also required with condominium set of rules: These documents may be outdated or no longer correspond to the actual circumstances, but remain legally binding as long as they have not been amended. In all these cases, the protection of legitimate expectations does not apply if the purchaser was aware of the true legal situation or should have been aware of it. It is therefore worth taking a close look and seeking professional advice.
Conclusion: Check the land register, don’t just read it
The land register is a fundamental element of Swiss property law, but it is no substitute for careful legal examination. Entries must not only be read, but also understood and evaluated in context. Legal know-how is essential, especially when checking land register extracts, real estate transactions or financing issues. After all, what appears clear at first glance may be quite different in legal depth.
LINDEMANNLAW offers you sound advice in the entire field of land register and real estate law – from the careful analysis of existing entries to the legally compliant drafting of contracts and the representation of your interests vis-à-vis authorities, land registries or third parties. We combine professional precision with strategic thinking – and consistently enforce your rights.
Talk to us for legal clarity in real estate transactions.
Disclaimer: This publication is for general information purposes only and does not constitute legal advice. For legal advice on your specific situation, please contact us directly.
