23 January 2020: Real Estate Symposium

Mine, yours or ours?

What belongs to me and what belongs to everyone? A question that was not an issue in the real estate industry for a long time until the demand for expropriation became loud in Europe. Is property law also crumbling in Switzerland?

Collective ownership, nationalization or cooperativization: private property is coming under increasing pressure, and the legal and economic pillars of the decades since the Second World War are currently frequently being called into question. Until now, the guarantee of private property has provided security and contributed to Switzerland's prosperous development. For only a state that protects property offers individuals the opportunity to exert influence within the framework of their property. The real estate industry is therefore strongly concerned with these issues - also in the political arena. Too much intervention by the regulator paralyzes development on many levels. The Swiss Civil Code defines property as the right to dispose of an object within the limits of the legal system. Article 641 of the Swiss Civil Code states: "Whoever owns a thing may dispose of it as he pleases within the limits of the legal system. He has the right to demand it out from anyone who withholds it from him and to repel any unjustified interference."

High priority

The freedom of property thus has a high priority in the liberal economic order. However, it is also subject to restrictions and obligations arising from private law, public law and, not least, the moral demands of society. This consists of owners, non-owners and a state that must increasingly keep the common good in mind.

Government demands on investors and property owners are also on the rise. "Property challenges the entitled party. Only those who also use it for the benefit of others by offering adequate living space, creating jobs, providing capital, opening up production opportunities, enabling research or investing in social institutions have a real benefit themselves," write Martina Reinholz and Marc Capeder of the FM Chamber of SVIT in the program for the Real Estate Symposium, which will be dedicated to this topic in January 2020 (see box). In addition, new usage models are currently conquering the market that question the concept of "ownership" and critically examine the claim of ownership. "The new sharing society has declared war on the pursuit of ownership - or has it?" ask Martina Reinholz and Marc Capeder. Historians, subject matter experts and futurologists will attempt to approach the topic of "property obligations" at the Real Estate Symposium.

Failed at the councils
This opens up an interesting perspective on the current debates in the federal parliament regarding spatial planning and the new tenancy law. And this is where the crux of the matter becomes apparent. In the case of tenancy law, the Federal Council prefers a fundamental review that is to lead to an overall revision, while in the case of spatial planning it is relying on the cantons and wants to hand over to them the planning and compensation sovereignty for building outside the construction zones. In both cases, he has so far failed in the commissions and the two councils.

"Ownership obliges"
The next Real Estate Symposium of the five professional chambers of the SVIT will already take place in January 2020, namely on January 23 at the Ambassador House at Thurgauerstrasse 11 in 8152 Zurich. It will start at 8:30 am and last until 4:30 pm. The topic is "Property Obligations". Speakers include Beat Kappeler, social scientist, author and publicist; Urs Hausmann, independent management consultant with a focus on strategy development; Hans-Georg Häusel, psychologist and author; Christian Ehl, Managing Director of Nemetscheck/Bim+, Managing Partner of Hillert und Co., CTO of ShareYourSpace; Adrian Mühlematter, notary and managing land registrar; Stefan Hahn, Head of Technical Facility Management and Energy Management (AIRBUS Defence & Space); Urs Zeiser, body language expert. Conference chair: Marc Capeder, Head Property Management Allianz Suisse Immobilien; conference moderator: Ursula Unger, freelance moderator. Further information and registration at www.fm-kammer.ch and anmeldung@realestatesymposium.ch

"Well-intentioned" is not always efficient

The stronger the state intervention, the better it should be defined at the level of law or even constitution. This approach guarantees democratic legitimacy, says strategy consultant Urs Hausmann.

The demands of the state on investors and owners of real estate are increasing. The regulator is primarily trying to prevent the market from overheating. Where do you see the limits of government influence?

Urs Hausmann: On the one hand, the limit is a sufficient legal anchoring of the measures implemented by the "state". The stronger the interventions are, the better they should be defined at the level of law or even constitution. This approach guarantees democratic legitimacy. The concrete content in ordinances is not sufficient for this approach. Example: Negative interest rates as an instrument of the central bank have a meager legal backing, namely section 2.1.3 of the terms and conditions of the Swiss National Bank (SNB). In general, it can be said that only when their dysfunctionality is obvious and the damage to society becomes unacceptable is there a move away from less appropriate interventions.

Sharing economy, especially in the real estate sector, is in direct contrast to the guarantee of property as required by the Federal Constitution. Do you see this guarantee in danger?

No, not at all. Why this assessment? Every rented or used object or service ultimately has an owner or an entity responsible under ownership law. With the increasing separation of ownership and possession, the only thing that really matters is to ensure that appropriate legal provisions exist, or are implemented by the legislature. Examples: Uber or Airbnb.

In Berlin, calls for the nationalization of real estate ownership are growing louder. But property is the reward of one's own efforts and acts as a motivator for many people. How far can a society go in demanding that people give up their own property?

I think you mean property here, not possession. They are not the same thing. In the end, every decision relating to an economy - in Germany, for example - brings advantages and disadvantages. Both can be short-, medium- or long-term in nature. If no more private companies invest in Berlin or in Germany, that's not necessarily a bad thing, but the local people are likely to pay a very high price in the end. In my opinion, the basic problem is that legal interventions with bans are "well-intentioned" but neither effective nor efficient.

All surveys in Switzerland have been showing the same results for years with regard to the desire to own a home: It is still at the top of the list. How can this individual desire be reconciled with a commitment to society?

It is quite simple: The polluter-pays principle is to be introduced consistently and the truth about costs is to be helped to break through and this in the entire national economy. If a single-family house in a peripheral region carries the price tag of the true total costs, almost no one would think of building a single-family house there. Then people will behave in a way that is completely in keeping with the environment and society.

"The line has been crossed"

"There are laws that must be clearly formulated, and if they tamper with the property of the market order and the constitution, this is illegal," publicist and author Beat Kappeler is convinced.

The demands of the state on investors and owners of real estate are increasing. The regulator is primarily trying to prevent the market from overheating. Where do you see the limits of government influence?

This limit has long been exceeded. Whether houses, apartments, can be sold or rented, should be decided by the provider, without state comfort regulations. And the overheating of the construction market is exclusively a consequence of the frivolous money creation and zero interest rate policy of the central banks, i.e. a direct consequence of state interference. All that is needed is for this to stop, and to stop immediately, and for the accumulated cheap debt to be paid off.

Sharing economy, especially in the real estate sector, is in direct contrast to the guarantee of property as required by the Federal Constitution. Do you see this guarantee in danger?

As far as I know, it used to be called shared apartments among students, condominiums among owners, timeshare with Hapimag for vacationers, etcetera, and today Airbnb. But it is always about more rational use of the ownership of space, so that it is efficient. The revolt against Airbnb and Uber is as irrational as the rage in 1840 against the railroads. Incidentally, the federal constitution does not comment on these forms of use, and its guarantees are therefore not at risk.

In Berlin, calls for the nationalization of real estate ownership are growing louder. But property is the reward of one's own efforts and acts as a motivator for many people. How far can a society go in demanding that people give up their own property?

A society cannot do that, because "there is no such thing as society," somewhat crudely put. There are laws that must be clearly formulated, and if they encroach on the property of the market order and the constitution, this is illegal. Germany's constitutional sentence that "property obliges" is woolly, non-executive and invites clumsy socialism. Germany is one illustration of this.

All surveys in Switzerland have been showing the same results for years with regard to the desire to own a home: It is still at the top of the list. How can this individual desire be reconciled with a commitment to society?

Exactly, there is no such thing as "society". There is spatial planning, local planning, in other words clear, formulated rules of public order. The rest is voluntary. And when it comes to the need for space in a confined area: the Halensiedlung of Atelier 5 in Bern/Kirchlindach has shown since the 1950s that a house of one's own, with front and back gardens, out of sight of the neighbor, needs no more land than the blocks with which the specifications of unimaginative, and "socially" irresponsible spatial planners have distorted living for seventy years.