Is a condominium owners' association obliged to enforce its regulations against individual owners by taking legal action?

1. facts

In BGE 151 III 377, the Federal Supreme Court had to rule on the question of whether a condominium owners' association is obliged to enforce its regulations against individual owners through legal proceedings. The decision was based on the fact that the owners of a condominium unit had replaced the floor coverings in their bedrooms and in the living/dining/hallway area of their apartment. The owners of the condominium unit directly below considered this to be a violation of the condominium regulations, which prohibit condominium owners from placing excessive strain on the floors of their rooms and changing the condition of the floor coverings and substructure in such a way that this results in a deterioration of the sound conditions at the expense of other condominium units. At a regular condominium owners' meeting, they therefore requested, among other things, that the administration be instructed and authorized to demand that the owners of the condominium unit directly above theirs remove the floor coverings installed in the four bedrooms within two months and, if necessary, to enforce this through legal action. They submitted an identical request regarding the floor coverings installed in the living room/dining room/hallway area. The condominium owners' association rejected these requests by eleven votes to one.

2. considerations of the federal court

The Federal Court recalled that a Condominium owners, in order to ward off unlawful interference by other condominium owners that interfered with their special rights, also had recourse to defenses based on ownership and possession.. In particular, he could sue for the cessation of excessive emissions. The Federal Supreme Court then pointed out that the legal relationships between the individual condominium owner and the community would generally be handled by the community. Since the meeting of condominium owners could amend the regulations at any time with the necessary majorities, the Federal Supreme Court confirmed the correctness of its previous case law, according to which no condominium owner could sue another directly for compliance with the regulations, but rather had to first obtain a resolution from the community on his or her request, which he or she could then challenge in court under the general conditions (see BGE 151 III 377 E. 2.1, 2.2, and 2.3.1).

After setting out the grounds for challenging the resolutions of a condominium owners' meeting and summarizing the legal opinions on the question of whether a condominium owners' association is obliged to enforce compliance with its regulations by taking legal action, the Federal Supreme Court considered that the freedom of the majority responsible for a resolution should not be restricted lightly by the right of an individual condominium owner to challenge it. Respect for the majority principle calls for a certain degree of restraint when reviewing such decisions.. By requiring authorization from the condominium owners' association for civil proceedings outside of summary proceedings, the law grants the condominium owners' association the right to decide freely, within the framework of the law and the community rules, whether or not it wishes to pursue legal action. The community is obliged, through its administrator as the executive body, to ensure compliance with the regulations. However, this does not imply an obligation to enforce the regulations through legal action regardless of the specific circumstances, as this would otherwise negate any freedom of the majority responsible for the decision in this area.. In particular, with regard to the relationship between the condominium owners and the procedural costs mentioned in the case law on Art. 712t para. 2 of the Swiss Civil Code, the condominium owners' meeting may well have objective reasons for deciding against legal action. It should also be borne in mind that the question of whether there has actually been a breach of the regulations is the subject of any legal proceedings brought by the community against the condominium owner who is considered to be the infringer. Whether the condominium owners' meeting wishes to initiate legal action will also depend on its assessment of the prospects of success. However, it cannot be expected that it will already be clear at the time of its decision whether there has actually been a violation of the regulations. Similar considerations would apply to the question of whether the community of condominium owners outside of legal proceedings would be obliged, regardless of the specific circumstances, to demand the removal of a situation that violates the regulations—in this specific case, demolition.: Apart from the fact that it did not need to be clarified at the time of the decision whether there had actually been a breach of the regulations, there could also be objective reasons for refraining from taking such a step in this case.. Consider, for example, the impact on the relationship between condominium owners or aspects of proportionality (see BGE 151 III 377 E. 2.3.2 ff.).

With regard to the specific case, the Federal Supreme Court pointed out that the installation of the floor coverings that was the subject of the complaint had an impact exclusively on the relationship between the floor unit in question and the floor unit of the complainant condominium owners. Common interests were not affected. As the owners directly affected, the complainant condominium owners had the option of taking action against disruptive emissions in accordance with Art. 679 in conjunction with Art. 684 of the Swiss Civil Code (ZGB). In the context of an action for nuisance, the provision of the regulations in question is relevant insofar as it is used to assess whether there is excessive impact. The question of whether the burden of proof in an action based on Art. 679 in conjunction with Art. 684 of the Swiss Civil Code is very high can be left open. In any case, the complaining condominium owners have reasonable legal recourse to take action against disturbances to their property caused by the installation of the new floor coverings.. The fact that no communal interests were affected was an objective reason for the decision by the condominium owners' association to refrain from taking the requested measures. Under these circumstances, the waiver of the measures requested to enforce the relevant provision of the regulations does not violate either the law or community regulations. In particular, it does not appear to constitute an abuse of rights, nor has any claim of unequal treatment of condominium owners been asserted (see BGE 151 III 377 E. 2.4).

3. Criticism in teaching

The ruling of the Federal Supreme Court contradicts the doctrine—also cited by the Federal Supreme Court in its decision—which generally affirms the obligation of condominium owners« associations to enforce their regulations through legal action (see BGE 151 III 377 E. 2.3.4). Accordingly, the Federal Supreme Court's decision has also been met with criticism. Wermelinger/Varin, for example, consider that the option granted to a condominium owners» association to waive the enforcement of regulations is not worthy of protection, as this would undermine both the purpose of protecting minorities under Art. 75 of the Swiss Civil Code (ZGB) and the principle of the binding nature of the rules of use and administration laid down in Art. 649a ZGB. (Amédéo Wermelinger/Simon Varin, Le choix de la PPE de ne pas faire respecter son propre règlement, analyse de l’arrêt du Tribunal fédéral 5A_17/2024, Newsletter immodroit.ch avril 2025, p. 5 with reference). They then rightly point out that it should not be possible for a condominium owners' association to implicitly "amend" its regulations by a simple majority decision and, referring to the different objectives and structure of the action for annulment, they object that the Federal Supreme Court did not sufficiently address what the reference by the complainant condominium owners to the action for immission actually meant for them (Wermelinger/Varin, loc. cit., p. 5 f. with references).

4. conclusion

As Wermelinger/Varin rightly point out, the Federal Supreme Court's decision is essentially based on the fact that the complainant condominium owners had an alternative legal remedy available to them in the form of an immission lawsuit (Wermelinger/Varin, loc. cit., p. 5). Against this background, it is to be expected that the question of whether and under what conditions a condominium owners' association is obliged to enforce its regulations against individual owners will be clarified in the future.

In any case, before bringing an action against a decision by a condominium owners' meeting to refrain from enforcing its regulations, it will henceforth be necessary to clarify whether the condominium owners concerned have alternative legal recourse—for example, on the basis of defensive claims arising from ownership, possession, or protection of personality rights—and whether there are objective reasons for refraining from enforcing the regulations.