A Swiss national residing in Dubai and married to a British husband wanted to purchase two land parcels in the Canton of Friborg for CHF 1.6 million. As the so-called Lex Koller regulating the acquisition of land property in Switzerland applies only to foreigners, Swiss nationals were so far not subject to the Lex Koller. In line with this practice, the local land registry authorities of the Canton of Fribourg ruled that the envisaged land property was not subject to a Lex Koller approval.
The Swiss Federal Justice Agency supervising the local implementation of the Lex Koller appealed against this decision before the Swiss Federal Supreme Court by arguing in the specific case constellation that a large part of the land purchase price was financed by the foreign husband. The highest court in Switzerland confirmed that Swiss expatriates along with Swiss nationals residing in Switzerland are not subject to the Lex Koller as long as the foreign financing ranges within the usual limit of two thirds of the sales value of the land property.
However, the Swiss Supreme Court held that the Lex Koller should apply to Swiss nationals too if the financing exceeds 80 percent since the foreign financier acquires a quasi-ownership position in the Swiss land property. In the specific case constellation, the British husband residing in Dubai contributed around CHF 400'000 to the purchase price. Furthermore, the mortgage of CHF 1'200'000 was entirely served by the husband's income which led the Swiss Supreme Court to the conclusion that the British husband's share of the financing was well over 80 percent of the overall purchase price.
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