Is such a waiver legal?
My brother and I have just inherited a building plot that is divisible. A property developer has offered to buy his share and build a block of flats on it. Knowing that I'm vindictive, my brother asked me not to get in the way and to sign an undertaking in which I waive, in advance, my right to oppose any future building project on his half of the plot. As his only neighbour, he hopes to save time and money on legal proceedings. Is this possible?
L. Geneva
In the context of building projects, it is not uncommon for developers or owners to seek the prior agreement of neighbours in order to avoid potential objections during the planning application procedure.
Is such an approach legal? The answer is nuanced. In Switzerland, freedom of contract allows parties to enter into agreements as long as they respect public policy, good morals and mandatory rights.
However, a commitment must not undermine public policy. For example, neighbours cannot validly waive their right to object to a project that would seriously breach planning or building regulations (e.g. excessive height, failure to respect distances or harm to the environment). In such cases, the competent authority could disregard the agreement and examine the objection despite the initial undertaking.
Furthermore, to be valid, this agreement must be freely given, transparent and precise as to its purpose. It is therefore advisable to formalise it in writing, making sure that the construction project scrupulously complies with the applicable rules. Obviously, such an undertaking not to raise objections does not remove the legal control exercised by the authorities, and the granting of planning permission remains conditional on compliance with the standards in force.
The Swiss Federal Supreme Court ruled on this issue in June 2021 (4A_73/2021), stating that to be valid, a neighbour's undertaking must be clear, precise and reflect freely given consent. Any form of pressure or undue advantage could taint the agreement.
This decision therefore calls for caution: while such agreements are possible, they remain subject to the legality and control of the authorities, who must not tolerate agreements to withdraw objections that could be described as immoral within the meaning of art. 20 of the Swiss Code of Obligations...
