1. Promise to contract
It is a preliminary agreement whereby persons, on their own behalf or that of a company, undertake to sign a future main contract for which they specify all the main points. When the future main contract is signed in the presence of the notary – as in the case of a property sale – the promise should also be so signed.
In the promise to sell, the seller undertakes to sign a sales contract whereby he or she transfers ownership of a property to the buyer in exchange for payment of an agreed-upon price by the latter.
The sale is a contract whereby the seller undertakes to transfer ownership of a property in exchange of payment of a price by the buyer who can buy it either for him or herself or as a company. When it involves a building, the sales agreement should be authenticated. This is a typical deed authenticated by a notary. Within the framework of sales and acquisitions, the issue of environmental audits is increasingly important.
Il arrive parfois que des parties procèdent à un échange immobilier; pour cela, il est nécessaire de faire appel aux services d’un notaire. If the properties exchanged are located in different cantons, the authenticated deed will be drafted in close partnership between the swisNot notaries of the relevant cantons.
4. Emption or pre-emption agreement
Right of emption is the right to buy a piece of property at an agreed-upon price during a certain period, agreed by the owner to another person. This person therefore has the right but not the obligation to buy. The owner on the other hand is obliged to sell. This right, set out in an authenticated deed, can be filed on the land register. Very similar to right of emption is the right of pre-emption. This is the right of preference agreed by the owner to another person to buy a property but only if the owner decided to sell the property. The price and terms of sale should be set out in the agreement, in which case it should be confirmed by an authenticated deed. This right may also be recorded in the land register.
5. Public or private auctions (through tenders)
Some customers choose to sell their property – whether real property or otherwise – at auction. In this case, it is useful to consult the notary, independent of the form of the deeds to be drafted.
6. Encumbrances on real property
To finance the purchase of a property through foreign funds, the buyer can take out a mortgage with a bank or insurance company. To secure the loan, the property is burdened with a charge, in general a mortgage note. The notary is asked to draft a lien contract establishing a mortgage note or increasing an existing mortgage note. This document includes the debt (the mortgage) secured by a lien or other encumbrance on real property and allows use of the value of the property.
7. Easements (in particular usufruct, residential rights) and rent charges
Frequently, an owner of property transfers its ownership to his or her children, while keeping usufruct – i.e. the capacity to continue to live in the property or lease it and receive rent – or a residential right. These operations, often occurring within the inheritance schedule, require the cooperation of the notary who drafts the authenticated deeds and files them on the land register. Moreover, it may be necessary to confirm obligations by creating rental charges also filed on the land register.
8. Constitution of separate and permanent surface rights
Surface right is a right whereby the ownership of the site is separated from the constructions built on it (or below it). If it can be transferred and for a certain period of time, surface right may be filed on the land register as a separate and permanent right with the help of the notary who draws up the necessary deeds for this purpose. It may then be mortgaged.
9. Creation of a condominium (PPE)
The condominium system is a form of co-ownership whereby the owners of the floors of a building own rights relating to “communal parts” as well as and above all the exclusive rights of one or several floor units (e.g. an apartment). The creation of a condominium requires an authenticated deed which should be filed on the land register. Your notary is perfectly qualified to advise you in this area.
10. Rural property law
The aim of the Rural property Act (LDFR) is to maintain farming structures. Any land located outside a building zone and a surface equal to or above 2,500 sq m can only be sold after approval by the Canton’s Property Authority (Autorité Foncière Cantonale). The notary, as well as drafting and executing the necessary authenticated deeds, applies to the competent authority in compliance with the relevant Act. Generally speaking, the buyer should be a farmer and the property not over-priced. Provisions concerning farms are also set out (ban on material division) as are provisions concerning the division of farm buildings (ban on fractioning). A building can also, in certain conditions, be excluded from the field of application of this Act if it has lost its farming purpose.
11. Collective ownership
When several people collectively own (jointly owned or co-ownership) buildings, located in one or several cantons, it is strongly recommended to call on the services of a notary, and of swisNot in particular, if these people wish to proceed with the division of buildings between themselves.