Novation of easements or clarification of the existing easement's footprint, what are the transfer rights?

The owners of properties No. 1 and 2 grant a servitude (right of use) over property No. 1 for 30 parking spaces in a car park to be built on property No. 1, in favour of property No. 2. A, the new owner of property No. 1, and B, the new owner of property No. 2, decide to establish a new servitude over plot No. 1 for 24 parking spaces in favour of plot No. 2, and to cancel the existing servitude covering 30 parking spaces.

Cantonal law provides for the collection of a transfer duty, particularly in cases of economic transfer of the right to dispose of the property, such as burdening a property with a servitude that permanently and significantly influences the exploitation or value of the encumbered property.

The tax authority considers this a transaction subject to transfer tax. The cantonal judges hold that it is a novation. The owners consider it a clarification of the original easement contract (the easement's base).

Federal judges consider that the cantonal judges' interpretation (i.e., favouring novation over the precise definition of the servitude's basis) is not arbitrary.

The judgment is in German. It is a case from Lucerne.

Federal Tribunal, judgment 9C_246/2024, of 10 July 2025