Landmark ruling in the matter of second homes

On 1. The Second Homes Act (ZWG) came into force on January 1, 2016. This comes after the Swiss people voted in favor of the new government on 11 September. March 2012 adopted the second-home initiative. Despite the legal basis, there are always disputes about the details, which also keep the courts busy. On 8. The Federal Supreme Court in Lausanne has now handed down a groundbreaking ruling on May 1 that provides clarity with regard to the application of Article 11 of the ZWG. The highest Swiss court has ruled that it is not permissible to demolish, rebuild and simultaneously extend so-called “old-law buildings” – i.e. buildings that legally existed or were approved on the day the initiative was adopted. And this without imposing restrictions on the use of the new living space.

With/without usage restriction?
Specifically, it concerned a case in the Punt Muragl area on the territory of the municipality of Samedan. In February 2018, the building authorities approved the demolition of the building and the construction of two new residential buildings. A “primary residence” usage restriction was imposed on the “North” residential building. The main usable area of the “South” residential building was to be extended by around 30 percent, without any restrictions on use. A community of heirs as direct neighbors (complainants) lodged an objection to the planning application, which was rejected by the municipality. The subsequent appeal to the Administrative Court was also rejected almost a year ago. The complainant appealed to the Federal Supreme Court in September of last year, and the Federal Office for Spatial Development (ARE) also appealed against the decision of the Administrative Court.
The ARE and the municipality of Samedan argued that an old apartment was free to use and could be renovated, converted and rebuilt within the scope of the existing main usable area. At the same time, the existing living space could be extended by up to 30 percent without restricting residential use. According to the ZWG, only the creation of additional apartments is excluded. For the Administrative Court and the municipality of Samedan, it is not logical why extension possibilities should only exist for existing apartments, but not for rebuilt apartments under the old law. This does not make sense, particularly against the background of the spatial planning objectives of economical land use and inner densification.

A political compromise
The Federal Supreme Court comes to a different conclusion in its reasoning. It refers to Article 11 of the ZWG. In paragraph 2, structural alterations are only permitted within the scope of the existing main usable area, while Article 3 allows a maximum extension of 30 percent as an exception, with the clear statement “provided that no additional dwellings are created”. This is a political compromise: the Federal Council did not want to allow any extensions because they would run counter to the aim of the constitutional articles. The Federal Supreme Court also refers to the debate in Parliament, where it was stated that the 30 percent only applies to moderate extensions to existing buildings. This is to enable necessary renovations and modernizations, such as the addition of a lift or a wet room.

Candinas: “Unnecessary restriction“
For Graubünden CVP National Councillor Martin Candinas, this regulation was already far too restrictive when the ZWG was being discussed. In June 2018, he therefore submitted a motion with the aim of deleting the phrase “provided no additional apartments are created” from the law. In its reply of August of the same year, the Federal Council referred to the Federal Constitution, which limits the proportion of second homes in the total stock to a maximum of 20 percent. If Candinas’ motion were adopted, this limit would no longer apply. The Federal Council also speaks of a political compromise. “It goes to the limit of what the constitutional article allows.”
Candinas’ motion has not yet been dealt with and will therefore be written off after the summer session. Candinas therefore intends to submit a new parliamentary initiative in the current session. The ruling of the Federal Supreme Court shows that his motion takes up a more than justified concern and that a change in the law is needed immediately and as quickly as possible. He is not particularly surprised by the verdict. “The Second Homes Act was poorly drafted. The ruling is a further, completely unnecessary restriction that prevents sensible building activity in our villages,” he says.

Source: Stifel, Reto. 2020. “Landmark ruling in the matter of second homes” Engadiner Post/Posta Ladina, 08.06.2020

Illusion No. 8: There will soon be no more new vacation apartments!