New rules on the protection of possession in cases of unlawful interference with real estate

The legislative amendment to the Swiss Civil Code (ZGB) and the Swiss Civil Procedure Code (ZPO) is a response to the problems encountered when evicting squatters from properties. It strengthens the rights of owners by making it easier for them to regain possession of their property in the event of squatting or similar disturbances of possession. For this purpose, a new legal remedy has been introduced with Art. 260a ZPO: the court order.

The previous legal situation entailed several practical difficulties: The right of self-help had to be exercised "immediately," which was often not feasible in practice. In addition, an eviction by the police was not enforceable without a court decision, and court eviction orders could not be directed against an unknown group of people.

Now, by relaxing the requirements of Art. 926 ZGB, it is easier to take action against squatters. The deadline for exercising the right of self-help has been extended for this purpose. In the case of a property taken by force or stealth, the possessor of the property may now retake possession by expelling the perpetrator within a reasonable period after becoming aware of the dispossession. However, self-help remains subsidiary and is only permissible if official assistance is not available in time, whereby the means used must be proportionate. For movable property, the previous legal situation and thus in particular the requirement for immediate action remain unchanged.

In addition, Art. 260a ZPO creates the court order as a new instrument for the protection of possession explicitly for real estate. It responds to the procedural problem that a classic civil lawsuit generally requires clearly identified parties and that action against unknown persons was previously not possible. The possessor of a property disturbed or dispossessed by unlawful interference can apply to the court to order the removal of the disturbance or the return of the property against an indeterminate group of people. This group of people is "indeterminate" only formally: It includes precisely those people against whom the requested protective measure is directed and against whom it will later be enforced. The prerequisite for the application is that the applicant proves their possession and substantiates the unlawful disturbance or dispossession.

The court decides on the application without delay, but at the latest within five days. The order is made public by posting it on the property. Affected persons can file a reasoned objection within ten days. If an objection is filed, the rightful possessor must conduct ordinary proceedings against the objectors, if necessary by means of protection in clear cases under Art. 257 ZPO. With the objection, the order loses its effect with respect to the objecting person but remains effective for all non-objecting persons.

Upon application by the rightful possessor, the court may, order the early enforcement of the return or the removal of the disturbance and, if necessary, demand protective measures or the provision of security. In this case, the affected person can file an unsubstantiated objection. The court sets a deadline of ten days for the objecting person to file a lawsuit. The order remains provisionally effective against the affected person.

It remains to be seen whether the desired practical simplification can be achieved through the revised legal provisions.