Federal Court Decision Restricting the Possibility to Extend Second Homes
7. Juli 2020 – In a controversial decision, the Federal Court has decided that the owner of a second home could not cumulate the rebuilding of his second home and the 30 per cent extension of his second home.
According to Article 11 of the Second Homes Act (SHA):
- Homes subject to the previous law are not subject to any restrictions on residential use; existing or future restrictions on use under the cantonal or communal law are reserved.
- Such homes may be renovated, converted or rebuilt within the limits of their pre-existing main usable area. If by doing so additional homes are created, these may be authorised without any requirement to impose a restriction on use under Article 7 paragraph 1, subject to any other requirements of federal and cantonal law.
- Homes subject to the previous law within building zones may be extended by a maximum of 30 per cent of the main usable area existing on 11 March 2012, provided no additional homes are created. Outside building zones, extensions are permitted in accordance with the regulations on building outside building zones.
- Extensions that exceed the dimensions mentioned in paragraph 3 are permitted if the home is declared to be a principal home as defined in Article 7 paragraph 1 letter a or a home intended as managed tourist accommodation as defined in Article 7 paragraph 1 letter b in conjunction with Article 7 paragraph 2 letter a or b and the relevant authorisation requirements are met. The building authority shall order a corresponding restriction on use in the building permit and instruct the land registry to note the restriction on use in the land register as soon as the building permit becomes legally effective.
In substance, the Federal Court set forth that the owner of a second home had to opt between paragraph 2 (the rebuilding of his home) and paragraph 3 (the 30 percent extension of his home). The Federal Court further indicated that the rebuilding and extension of second homes could not be achieved in successive steps. Accordingly, a second house extended after 11 March 2012 can only be rebuilt in its size ante 11 March 2012. And a second home rebuilt after 11 March 2012 cannot be extended afterwards.
The Federal Court however admitted that the rebuilding of a second home could occur elsewhere, but close to its original location, on the same plot, provided that the building remains similar to the previous one.
The Federal Court’s decision will raise controversy, as it does not allow for a logical interpretation of Article 11 paragraphs 2 and 3 SHA. According to this decision, the extension by 30% of the home according to paragraph 3 should also then exclude a later renovation of the extended part of the home according to paragraph 2. The exclusion of the renovation of a part of a home was definitely not in the intent of the legislator when it voted the SHA.
Contributed by Nicolas Iynedjian.