Question 1

82. Can a violation of the provisions of ANRA have criminal consequences?

Accepted Answer

Yes – the following violations of ANRA carry a penalty of imprisonment, a monetary penalty or a fine under certain circumstances:

circumventing the authorisation requirement (in particular, executing a transaction that is void for lack of authorisation, or the failure by heirs subject to authorisation to obtain authorisation within the required time limit, Art. 28 ANRA);
providing incorrect or incomplete information to an authority, a land register office or a commercial register office in connection with the decision on whether authorisation is needed or on granting authorisation, or the fraudulent exploitation of an error made by the authorities (Art. 29 ANRA);
failing to comply with conditions (Art. 30 ANRA) and
refusing to provide information and produce evidence (Art. 31 ANRA).

Any financial gains unlawfully obtained through an offence will be forfeited to the canton (Art. 33 ANRA). The cantons are responsible for prosecuting these offences (Art. 35 ANRA).

Question 2

81. Who is responsible for rectifying the unlawful situation?

Accepted Answer

If the unlawful situation is not otherwise remedied (for example, by implementing a settlement agreed with the relevant authority), the cantonal authority with a right of appeal or the Federal Office of Justice must, on its own initiative, take legal action to restore the original situation, to dissolve the legal entity or to arrange for the compulsory sale of the property (Art. 27 of ANRA).

Question 3

80. A land register office discovers that it was misled at the time of registration and incorrectly declared a transaction not to require authorisation. The transaction has already been recorded in the land register. What can be done?

Accepted Answer

The land register office must report the matter to the relevant licensing authority without delay. If the person acquiring the property has provided incorrect or incomplete information regarding matters relevant to the authorisation requirement, the licensing authority can declare, ex officio and retrospectively, that authorisation is required (Art. 25 para. 1^a ANRA). At the same time as declaring authorisation is required, a decision will be taken to refuse authorisation. The transaction for which authorisation is required becomes void when the refusal of authorisation becomes legally binding, and the unlawful situation must be rectified ex officio (see Question 78).

Question 4

79. In what circumstances can a decision be revoked?

Accepted Answer

79. In what circumstances can a decision be revoked?

Legally binding authorisation or a declaration confirming that no authorisation is required is revoked ex officio if the conditions are not complied with despite a warning being issued, or if the authorisation or declaration was obtained by providing false information (Art. 25 ANRA). On revocation, a declaration is made that authorisation is required and, at the same time, a decision is made to refuse authorisation. The transaction on which authorisation or the declaratory decision is based becomes void when revocation becomes legally binding, and the unlawful situation must be rectified ex officio.

If the licensing authority only becomes aware of matters that are material to its decision after its decision has been issued, it may, after reconsideration, revoke or amend its decision while the appeal period is still running. ANRA does not contain any specific provisions on this process, with the result that it is primarily the relevant cantonal law on administrative procedure that applies.

Question 5

78. A transaction requiring authorisation is carried out without authorisation. What are the implications under civil and administrative law?

Accepted Answer

78. A transaction requiring authorisation is carried out without authorisation. What are the implications under civil and administrative law?

Where a transaction involves an acquisition of land that is subject to authorisation and no exception applies, it may only be completed and recorded in the land register if the person acquiring the property has first been granted authorisation. The same applies to a transaction that is not recorded in the land register but which requires authorisation, such as the transfer of shares in a property company. A transaction requiring authorisation is not valid until authorisation has been granted and is legally binding (Art. 26 ANRA). The contracting parties are, however, legally bound to carry out the contract. The transaction becomes void if authorisation is refused or revoked, the registrar refuses to record the transaction in the land register or commercial register, or the auction authority rescinds its acceptance of a successful bid. The transaction is also void if the person acquiring the property carries it out (e.g. by transferring shares in a property company) without applying for authorisation or before the authorisation has become legally binding (Art. 26 para. 2 ANRA).

Invalidity and nullity take effect ex officio (i.e. no one needs to request the authority to declare the transaction invalid or void), with the result that payments that have been agreed cannot be claimed, and payments that have already been made may be claimed back within one year (Art. 26 para. 3 and 4 ANRA). In addition, the authorities must take legal action ex officio to remedy the unlawful situation (see Question 81).

Question 6

77. Why does the federal government review the decisions of the cantonal authorities?

Accepted Answer

If the cantonal authority with a right of appeal decides not to pursue an appeal (and thus agrees with the decision of the cantonal licensing authority), the case file is forwarded to the Federal Office of Justice (FOJ) (Art. 17 para. 3 ANRA). The FOJ thus receives files that have already been checked for ANRA compliance by two cantonal authorities. The FOJ examines whether the decision of the licensing authority complies with federal law or whether an appeal should be filed against it. In this way, the FOJ also ensures that ANRA is enforced in a consistent manner throughout Switzerland.

Question 7

76. When does a decision by the cantonal licensing authority become final?

Accepted Answer

Decisions only become final once the cantonal authority with a right of appeal, the Federal Office of Justice (FOJ) and the commune in which the property is situated have each waived their right to appeal in writing, or once the 30-day appeal period has expired without an appeal being filed by any party (for information on rights of appeal, see Question 74).

Question 8

75. How long do you have to decide whether to appeal?

Accepted Answer

75. How long do you have to decide whether to appeal?

The time limit for filing an appeal is 30 days from the date on which the decision is served on the parties or on the authority with a right of appeal. For the Federal Office of Justice (FOJ), which has a subsidiary right of appeal, the time limit does not begin to run until it has been notified of the decision by the cantonal authority with the right of appeal.

Cantonal procedural law does not apply if it does not comply with the minimum procedural requirements set out in Article 20 ANRA and, for example, provides that an appeal must be filed within less than 30 days (BBl 1972 II 1241, 1261). However, cantonal procedural law that is more generous in its requirements than federal law (e.g. the suspension of time limits during court recesses) does apply (BGer 2C_748/2017, para. 4.4).

Question 9

74. Can I appeal against a decision by the licensing authority, and who else is entitled to appeal?

Accepted Answer

74. Can I appeal against a decision by the licensing authority, and who else is entitled to appeal?

The parties to the contract (the person purchasing the property and the vendor) and other persons who have a legitimate interest in the annulment or amendment of a decision by the cantonal licensing authority of first instance may challenge that decision before the cantonal appeal courts and can also appeal to the Federal Supreme Court against the final cantonal decision.

The cantonal authority that has a right of appeal, the Federal Office of Justice (FOJ) and the commune in which the property is situated have the same rights (Art. 20 and 21 ANRA). However, communes may only file an appeal against certain types of decisions (authorisation; a declaration that the purchaser does not require authorisation; revocation of a condition) (Art. 20 para. 2 let. c ANRO).

Question 10

73. Does the licensing authority only assess the need for authorisation if the person acquiring the property requests it to do so?

Accepted Answer

No. The licensing authority also assesses whether authorisation is required if a cantonal authority entitled to appeal, the Federal Office of Justice (FOJ), a civil court, a criminal court or another authority so requests (Art. 15 para. 3 lets b and c ANRO), and, in certain circumstances, may also do so ex officio if it finds that provisions of ANRA have been breached.

Question 11

72. My notary will certify in a public deed that I am not a foreign non-resident. Can the land register office still refer me to the licensing authority?

Accepted Answer

72. My notary will certify in a public deed that I am not a foreign non-resident. Can the land register office still refer me to the licensing authority?

Even if you provide a notarial certificate stating that you are not a foreign non-resident, this does not necessarily mean that the land register office will not refer your case to the competent licensing authority. Whether or not someone is a foreign non-resident is a legal question that can only be decided by the licensing authority or the land register office if registration is applied for

Public deeds are only admissible as evidence of the facts they attest to, e.g. that the person acquiring the property is a German citizen and holds a valid C residence permit in Switzerland, or that all the shareholders of an acquiring company hold Swiss citizenship. The assessment of a notary or other lawyer, for example that the person acquiring the property has their actual place of residence in Switzerland or that the acquiring company is not controlled by foreign non-residents, has no probative value. It is simply a legal opinion provided by a person who has no authority to decide the matter, and therefore cannot be used as evidence (Art. 18 para. 3 ANRO).

Furthermore, public deeds prove the facts they attest to only if the person certifying the deed certifies that they have ascertained the facts through their own observation, and if there is no suggestion that the facts are incorrect (Art. 18 para. 2 ANRO).

Question 12

71. In which cases will the land register or commercial register office or the auction authority refer the person acquiring the property to the licensing authority?

Accepted Answer

71. In which cases will the land register or commercial register office or the auction authority refer the person acquiring the property to the licensing authority?

Where a transaction involves the acquisition of a property that is subject to authorisation and no exception applies, the transaction may only be completed, and, for example, recorded in the land register, if legally binding authorisation has been granted.

If the land register or commercial register office or the auction authority cannot immediately rule out the need for authorisation, they are required to refer the person acquiring the property to the licensing authority. The person acquiring the property then has 30 days (or 10 days in the event of an auction) to apply for a declaration that no authorisation is required or for authorisation to be granted (Art. 18 and 19 of ANRA, Art. 15 para. 3 let. a ANRO). Referral to the licensing authority is not a decision that can be challenged in its own right.

The guidelines on ANRA issued by the Federal Office of Justice (FOJ) assist land register offices in deciding whether to refer a case to the licensing authority or simply to register a transaction:

Question 13

70. When must an application be submitted for authorisation to purchase land or for a declaration that authorisation is not required?

Accepted Answer

70. When must an application be submitted for authorisation to purchase land or for a declaration that authorisation is not required?

A decision is required if the person acquiring the property cannot readily rule out that the transaction is subject to authorisation (Art. 17 para. 1 ANRA, Art. 15 para. 1 ANRO). Where a transaction requires authorisation, the acquisition cannot be recorded in the land register and an acquisition that does not require registration (e.g. a transfer of shares) cannot be effected without legally binding authorisation.

In addition, authorisation is required if there has been a change in circumstances that makes authorisation necessary when that previously was not the case (see Art. 14 para. 5 ANRA and, regarding changes in use subject to authorisation, Question 35). Furthermore, if circumstances change, it is the responsibility of the person acquiring the property (i.e. the person subject to the obligation) to have existing conditions revoked or amended.

The decision issued by the licensing authority always relates to the acquisition of a specific property (see No 3 of Annex 2 ANRO, which stipulates that details of the property must be included in decisions issued pursuant to ANRA; see BGE of 12 October 2011, 2C_423/2011, E. 1.2.1). Unless a specific transaction is being carried out, the applicant will generally be unable to demonstrate a legitimate interest in the matter. If a person buys and sells several properties in quick succession, the land register office must normally assess each individual case as to whether the requirement for authorisation can be waived or whether the matter must be referred to the licensing authority. In particular, each individual acquisition must be reviewed to determine whether circumstances have changed and whether the financing triggers a requirement for authorisation.

Question 14

69. Which local authority is responsible for deciding whether authorisation is required and for granting authorisation?

Accepted Answer

69. Which local authority is responsible for deciding whether authorisation is required and for granting authorisation?

Generally speaking, the cantonal authority in the place where the property is situated is responsible for deciding whether authorisation is required and also for granting that authorisation. Where shares in legal entities are acquired, the competent authority is that within whose jurisdiction the largest proportion, in terms of value, of the properties owned by those entities is situated (Art. 2 para. 1 and Art. 15 para. 1 let. a and para. 2 ANRA).

The cantonal licensing authorities and the authorities entitled to appeal are designated by the cantons. The contact details for these authorities are as follows:

Question 15

68. Who decides whether to authorise an acquisition?

Accepted Answer

68. Who decides whether to authorise an acquisition?

Enforcing the rules laid down in ANRA is primarily a matter for the canton in which the property is situated (Art. 15 ANRA). Unless the relevant land register office can immediately rule out any need for authorisation, having made a preliminary assessment, it will refer the person acquiring the property to the cantonal authority (Art. 18 para. 1 ANRA; see Question 71). The cantonal authority then decides whether the acquisition in question is permitted under the relevant legislation. If it decides that the acquisition should be permitted, i.e. if authorisation for the acquisition is granted, it is primarily the responsibility of the cantonal authority with the right of appeal, and secondarily that of the Federal Office of Justice (FOJ), to decide whether an appeal should be filed against the decision of the cantonal licensing authority.

ANRA also gives the Federal Council the special power to exempt the acquisition of a property from requiring authorisation in specific cases where the acquisition is in Switzerland’s national interest of (Art. 7 let. h ANRA; see Question 42).

Question 16

67. Are there any other grounds for authorisation that the cantons can introduce?

Accepted Answer

No. The grounds for granting authorisation which the cantons may introduce are exhaustively listed in Article 9 ANRA. Other than the grounds for authorisation mentioned above (social housing, second homes, holiday homes or accommodation units in aparthotels), there are no further grounds for authorisation that the cantons may introduce.

Question 17

66. Which cantons recognise a need for social housing as a valid ground for granting authorisation, and under what circumstances will authorisation be granted?

Accepted Answer

The following cantons recognise this ground for authorisation:

Fribourg
Geneva
Graubünden
Jura
Neuchâtel
Ticino
Vaud
Valais

A foreign non-resident may be granted authorisation to purchase land in order to construct social housing, i.e. rental properties with low rents, or rents that are affordable in comparison with similar properties in the same location, or to purchase such newly constructed residential buildings, provided that the locality is experiencing a housing shortage (Art. 9 para. 1 let. a ANRA).

Question 18

65. Do nationals of an EU or EFTA member state who hold a cross-border commuter permit also require authorisation to purchase a second home?

Accepted Answer

No. Provided that the second home is located close to where the person works in Switzerland, nationals of an EU or EFTA member state or – under certain circumstances – nationals of the United Kingdom who work in Switzerland as cross-border commuters (i.e. who hold an EU/EFTA cross-border commuter permit G) do not require authorisation to purchase a second home (see Question 29).

Question 19

64. I have been granted authorisation to purchase a second home in terms of Article 9 paragraph 1 letter c ANRA. Am I free to do whatever I want with the property?

Accepted Answer

No. You are not allowed to rent your second home to anyone and you will have to sell it within two years if you are no longer using it for its intended purpose.

Question 20

63. Which cantons grant authorisation for a second home in a location with which the applicant has exceptionally close ties that are worthy of protection?

Accepted Answer

The following cantons currently recognise this ground for authorisation:

Appenzell Ausserrhoden
Basel-Stadt
Fribourg
Graubünden
Jura
Lucerne
Neuchâtel
St Gallen
Solothurn
Ticino
Uri
Vaud
Valais
Zurich

Question 21

62. What are the basic requirements for obtaining authorisation to purchase a second home?

Accepted Answer

62. What are the basic requirements for obtaining authorisation to purchase a second home?

Firstly, the canton in which the property is situated must have included the relevant grounds for authorisation (acquisition of a second home under Art. 9 para. 1 let. c ANRA) in its implementing provisions for ANRA. Foreign non-residents may then be granted permission to purchase a second home in a location with which they have exceptionally close ties that are worthy of protection (Art. 9 para. 1 let. c ANRA). This means regular contacts which the person acquiring the property must maintain in order to safeguard overriding economic, scientific or cultural interests. Family ties or in-law relationships with persons in Switzerland, as well as stays for holidays, spa treatments, courses of study or other temporary purposes, do not constitute close ties worthy of protection (Art. 6 ANRO).

Like holiday homes, second homes may only be purchased by private individuals directly in their own name and not through a legal entity (Art. 8 ANRO). The rules on the ground area and net living space that apply to second homes are the same as those for holiday homes (see Question 54 ff.). If the person acquiring the property, their spouse, registered partner or a child under the age of 18 already owns a second or holiday home or a residential unit in an aparthotel in Switzerland, authorisation may only be granted on condition that this property is sold prior to the registration of the new acquisition (Art. 12 let. d ANRA in conjunction with Art. 11 para. 1 ANRO).

Question 22

61. Do the accommodation units in aparthotels have to be handed over to the hotel proprietor to be managed according to hotel standards?

Accepted Answer

Yes – accommodation units in aparthotels must be made available to the hotel proprietor for management according to hotel standards, particularly during the peak season (Art. 10 let. b ANRA). As this obligation is property-specific, it also applies to persons not subject to authorisation (e.g. Swiss nationals) if they purchase an accommodation unit subject to this requirement (Art. 7 ANRO).

Question 23

60. Is it permitted to let the holiday home to third parties?

Accepted Answer

Yes – subject to certain conditions. Holiday homes may not be let on a year-round basis, in order to prevent unlawful capital investments. However, to prevent holiday home complexes from standing empty for months on end, they may be let on a short-term basis (Art. 11 para. 2 let. f ANRO). The person acquiring the property must be able to use the holiday home themselves at any time for the stated purpose, which rules out long-term letting to a single tenant.

Question 24

59. I am a foreign non-resident and would like to purchase a holiday home through my company, which is based in Switzerland. Is this allowed?

Accepted Answer

No. Holiday homes and accommodation units in aparthotels may only be purchased by private individuals directly in their own name. An indirect acquisition via a legal entity is not permitted (Art. 8 ANRO).

Question 25

58. How many holiday homes can a foreign non-resident purchase?

Accepted Answer

In principle, any individual who is a foreign non-resident is permitted to acquire one holiday home. However, a family is only allowed to acquire one holiday home. As a result, if a person acquiring a holiday home or a residential unit in an aparthotel, or their spouse, registered partner or child under the age of 18 already owns a property of this type or a second home in Switzerland, authorisation may only be granted on condition that the property already held is sold before the new purchase is registered (Art. 12 let. d ANRA in conjunction with Art. 11 para. 1 ANRO).

Question 26

57. In what circumstances will it be accepted that there is a need for a larger net living area?

Accepted Answer

The person acquiring the property must provide plausible evidence of their additional requirements, i.e. of their need in future to share the home at the same time with family members (including close friends and, where applicable, domestic staff). Simply claiming that you intend to use the holiday home in future with your family and other people does not satisfy the requirement to provide evidence of additional need. The decisive factors are always the circumstances and needs at the time of acquisition (Federal Supreme Court 2C_947/2018, para. 3.5.3). An additional need is regarded as not sufficiently demonstrated if fewer than five people are expected regularly spend their holidays together in the property.The following information and documents must be provided, as a minimum, in order to substantiate the future shared use of the holiday home:

a copy of passports and current addresses of the persons who will regularly be spending holidays in the property with the person acquiring the property. This information allows the authority to rule out the possibility that any of these persons already owns a holiday home in the vicinity of the property. Their presence would not justify any additional need for space;
a signed declaration stating the intention to share the holiday home in future;
information regarding the relationship with the person acquiring the property;
information about holidays spent with the person acquiring the property in the past.

It is important that the layout of the holiday home is suitable to meet the additional needs claimed. For example, an apartment cannot be used by several people at the same time if it does not have enough bedrooms.

Question 27

56. Should areas under a sloping ceiling be included in the net living area?

Accepted Answer

Areas under a sloping ceiling are also included in the net living area if they can be used as living space, i.e. if, for example, they can be furnished, can be used for standing or sitting, or if everyday items (such as decorative objects or lamps) can be placed there. These areas must, as a general rule, be included in full when calculating the net living area. Whether areas under a sloping ceiling may, in exceptional cases, be excluded from the calculation of net living space must be assessed on a case-by-case basis. According to a practice that is applied by some cantons and is generally considered reasonable, where the ceiling height is less than 1.5 metres, only half of the area beneath the sloping ceiling is included in the net living area.

Question 28

55. What is the “net living area”?

Accepted Answer

The net living area includes all habitable rooms, and in particular (this list is not exhaustive):

living rooms, bedrooms and studies, kitchens (including kitchen units, appliances and cupboards), bathrooms (including wet zones and toilets), dressing rooms and fitted wardrobes;
areas that connect rooms forming part of the net living area, such as hallways, entrance areas, corridors, vestibules, lifts, internal staircases, privately used stairwells and door thresholds;
recreational areas, such as an enclosed (or lockable) swimming pool, sauna, steam room, fitness room and relaxation room (BGE 136 II 233);
verandas, greenhouses, conservatories or similar structures that are enclosed or can be locked;
leisure spaces, such as hobby rooms, workshops, TV or cinema rooms, or ‘carnotzets’; depending on the location and facilities, they may also include a wine cellar;
all areas designated for fireplaces or wood- or gas- (ethanol-)fired stoves in rooms forming part of the net living area (in particular in living rooms, hallways, etc.);
in general, any room that can be heated and has sufficient natural or artificial lighting; this includes rooms in the basement, regardless of whether they have a window or not, provided they are furnished as living quarters or can be furnished relatively easily.

The following do not generally count towards the net living area:

open balconies, terraces and loggias;
areas which serve solely to connect spaces that do not form part of the net living area;
the entrance and stairwell in an apartment block, provided that they are located outside the individual accommodation units and are not designed or furnished in such a way that they can be used jointly by the residents as a reception area, cloakroom, lounge or similar;
cellars without heating or insulation, which have little or no light, no special wall or floor coverings, and are used exclusively for storing a limited number of goods or items;
wine cellars with a floor area no larger than is required to store a limited number of bottles;
utility rooms with no more space than required to accommodate a washing machine and a tumble dryer, no more than two sinks, and sufficient space to hang up washing;
rooms for the house’s heating system, the oil tank, and for storing wood (pellets) or charcoal, and other rooms containing technical equipment, including those used for swimming pool maintenance;
attics or lofts with no windows, only minimal insulation and hardly any furnishings, and which are therefore unsuitable as living space or as a walk-in wardrobe;
garages for up to three vehicles per home, a bicycle storage room with space for up to two bicycles per person, or storage rooms for pushchairs, skis or other sports equipment, provided these are not heated or furnished.

Where spaces that are included in the net living area are shared by several co-owners, the relevant areas are allocated to the various homes on a pro rata basis (according to the number of dwellings or in proportion to the share of the property in condominium or joint ownership). No other arbitrary division of these areas is permitted.

Question 29

54. I've heard that holiday homes can’t be more than a certain size. If that's true: what restrictions on size apply?

Accepted Answer

The net living area of holiday flats and accommodation units in aparthotels must not, as a general rule, exceed 200m² (for more information on net floor area, see Question 55). In addition, in the case of holiday homes that are not in an apartment block, the total area of the property must not, as a rule, exceed 1,000m² (Art. 10 paras 2 and 3 ANRO). In practice, where it can be shown that additional space is required, a net living area of up to a maximum of 250m² (on the need for additional living space, see Question 57) and an area of land of up to 1,500 m² will be approved. Authorisation to purchase even larger areas of land may only be granted where there are compelling objective grounds for an exception to be made.

Question 30

53. In which cantons can people living abroad purchase a holiday home or an accommodation unit in an aparthotel?

Accepted Answer

The following cantons currently recognise grounds for authorising the acquisition of holiday homes and/or accommodation units in aparthotels:

Appenzell Ausserrhoden (holiday homes only)
Bern
Fribourg
Glarus
Graubünden
Jura
Lucerne
Neuchâtel
Nidwalden (holiday homes only)
Obwalden
St Gallen
Schaffhausen (only for accommodation units in aparthotels)
Schwyz
Ticino
Uri
Vaud
Valais

Question 31

52. What are the basic requirements for obtaining authorisation to purchase a holiday home or an accommodation unit in an aparthotel?

Accepted Answer

52. What are the basic requirements for obtaining authorisation to purchase a holiday home or an accommodation unit in an aparthotel?

The purchase of a holiday home or an accommodation unit in an aparthotel can only be authorised if the canton has introduced the relevant grounds for authorisation in its cantonal legislation and the property is located in a tourist resort designated by the canton (Art. 9 para. 2 and 3 and Art. 10 ANRA; see Question 53). The cantons and tourist communes may also impose various restrictions when introducing their grounds for authorisation. For example, they may decide to impose a total ban on authorisation for particular towns or districts; allow purchases only as part of a condominium and only up to a certain maximum percentage of the total available living space; limit the number of authorisations per year; or only permit the purchase of houses or apartments that are already owned by foreign non-residents (Art. 13 ANRA). The cantonal or communal requirements for the acquisition of holiday homes and accommodation units in aparthotels can be found in the cantonal implementing provisions for ANRA or obtained from the cantonal licensing authority where the property is located.

In addition, restrictions under federal law relating to property size (plot area and net living space; see Question 54) must be complied with, and, as a general rule, each person and their family may only purchase one residential unit (ban on owning multiple properties; see Question 58).

Furthermore, the authorisation must count towards the quota for holiday homes and accommodation units in aparthotels allocated by the Confederation to the canton concerned (Art. 11 ANRA, Art. 9 ANRO and Annex 1 ANRO). If the vendor themselves had also obtained authorisation for the original purchase of the house or apartment, the sale does not count towards the quota. Quota units may also be allocated to persons not subject to the ANRA who plan to sell houses or apartments to foreign non-residents (known in German as “Grundsatzbewilligungen” (authorisations in principle)); whilst individual purchases made subsequently by foreign non-residents still require a separate authorisation, they are no longer counted towards the quota.

Question 32

51. When is a hardship exemption granted under Article 8 paragraph 3 ANRA?

Accepted Answer

51. When is a hardship exemption granted under Article 8 paragraph 3 ANRA?

A foreign non-resident subject to authorisation may be granted authorisation to purchase a holiday home or a residential unit in an aparthotel in a current or former tourist resort even if authorisation would not normally be granted due to a cantonal or communal moratorium on authorisations or the removal of the location from the cantonal list of tourist resorts, if to do otherwise would cause the vendor of the property hardship and where the following conditions in particular are met (Art. 8 para. 3 ANRA, Art. 4 ANRO).

It is the vendor in person who must potentially suffer the hardship. They must be experiencing a financial emergency that was unforeseeable and cannot be resolved without selling the property. Furthermore, the vendor must demonstrate that every effort has been made to sell or possibly to lease the property to persons who do not require authorisation on reasonable terms (cost price plus a reasonable profit, provided the property has been owned by the vendor for more than three years) (Art. 4 para. 1 ANRO, BBl 1981 III 585, 625). In doing so, any speculation must be avoided and the sale price must be in line with current prices on the Swiss property market (BGE 111 Ib 176 E. 3). The house or apartment must have been used by the vendor as their primary residence.

Question 33

50. I am a foreign non-resident who is a beneficiary under the terms of a will. The estate includes a property in Switzerland. I am not a statutory heir. What is legal position here?

Accepted Answer

50. I am a foreign non-resident who is a beneficiary under the terms of a will. The estate includes a property in Switzerland. I am not a statutory heir. What is legal position here?

If you are a foreign non-resident who has inherited or been bequeathed real estate in Switzerland, but you are not a statutory heir under Swiss law (see Question 40) and you cannot or do not wish to rely on any other grounds for authorisation, you will still be granted authorisation for the acquisition in accordance with Article 8 paragraph 2 ANRA. Authorisation will be subject to the condition that the property is sold again within two years (calculated from the date on which authorisation takes legal effect, provided the application was submitted within the deadline) (BGE 103 Ib 178, para. 1; BGE 2C_484/2018 of 19 August 2019). This condition is mandatory and must be still be imposed even if the resale of the property is imminent.

However, if you can demonstrate a close tie to the property at the time of inheritance that is worthy of protection, authorisation may be granted without the requirement to resell. Ties of this kind arise, for example, where you have lived with the testator in the house bequeathed to you for a prolonged period, either continuously or at very regular intervals; or you have spent holidays there regularly with the testator for many years; or you have lived there as a tenant for many years (see BBl 2003 4357, 4367).

Heirs and legatees must apply for authorisation immediately after the will takes effect (i.e. after the deadline for renouncing the inheritance has expired) (Art. 17 para.1 ANRA; BBl 1981 III 585, 625). Persons requiring authorisation should not be able to derive benefit from inherited property over a longer period, other than in the two-year period allowed to resell the property (e.g. by generating rental income, making their own use of the property, etc.). If heirs who are required to obtain authorisation fail to do so, this renders the acquisition null and void (see Art. 26 paras 1 and 2 let. a ANRA in conjunction with Art. 17 para. 1 ANRA). Failure to obtain authorisation within the prescribed time limit is a criminal offence (Art. 28 ANRA).

Question 34

49. What conditions must I meet, as a foreign national, to be allowed to purchase real estate for charitable purposes?

Accepted Answer

49. What conditions must I meet, as a foreign national, to be allowed to purchase real estate for charitable purposes?

A foreign non-resident is allowed to acquire a property for charitable purposes if they can demonstrate that the property directly and exclusively serves charitable purposes and the person acquiring the property is exempt from direct federal tax in respect of the property (Art. 8 para. 1 let. c ANRA). Confirmation from the tax authority stating that the property to be purchased is exempt from tax must be included in the application for authorisation.

The property to be acquired must be used exclusively for charitable purposes, such as cultural or educational purposes, or for the support of ‘the poor, the sick, the elderly or the disabled’ (BBl 1972 II 1241, 1259): the property could, for example, be a cultural centre, a place of worship or the premises of an institution used for meetings of its members, or for providing counselling, care or training, etc. The purchase cannot be authorised if the property only serves charitable purposes indirectly; for example, it is not sufficient if the proceeds from the rental of residential property are used for charitable purposes.

Question 35

48. Are pension funds subject to authorisation, and when are they entitled to authorisation when purchasing property?

Accepted Answer

48. Are pension funds subject to authorisation, and when are they entitled to authorisation when purchasing property?

Foundations exempt from direct federal tax which are subject to the Federal Act on Occupational Old-Age, Survivors’ and Invalidity Pension Provision (OPA) are entitled to authorisation to acquire real estate if the property is to be used as an investment that enables domestic undertakings to provide pensions to personnel employed in Switzerland (Art. 8 para. 1 let. c ANRA).

Whether such institutions may acquire land without requiring authorisation must be assessed on a case-by-case basis. According to the established practice, they are not, in principle, subject to authorisation simply because the founding company is a foreign-controlled company.

Question 36

47. Under what circumstances will banks and insurance companies requiring authorisation be granted authorisation to purchase property in Switzerland?

Accepted Answer

47. Under what circumstances will banks and insurance companies requiring authorisation be granted authorisation to purchase property in Switzerland?

A bank or insurance company subject to authorisation that is licensed to conduct business in Switzerland will be granted authorisation if the property is mortgaged in its favour and the acquisition takes place as part of a forced sale or a liquidation settlement (Art. 8 para. 1 let. d ANRA).

Furthermore, under certain conditions, a foreign insurance company licensed to conduct business in Switzerland may be authorised to acquire property for its domestic business (Art. 8 para. 1 let. b ANRA). The maximum value of Swiss real estate acquired under this authorisation criterion is determined by the provisions for Swiss business deemed technically necessary by the insurance supervisory authority.

Question 37

46. How long is authorisation valid for?

Accepted Answer

Authorisation lapses if the acquisition of the property is not completed within three years. In exceptional cases and for good cause, the licensing authority may extend this deadline if the person making the acquisition requests this before the deadline expires (Art. 12 para. 1 and 2 ANRO).

Question 38

45. Are there any conditions attached to the authorisation?

Accepted Answer

Yes – authorisation is granted subject to conditions and requirements designed to ensure that the property is used for the purpose claimed by the person acquiring the property (Art. 14 ANRA, Art. 11 ANRO).

Question 39

44. Grounds for authorisation at federal level

Accepted Answer

44. Grounds for authorisation at federal level

The acquisition of real estate for which prior authorisation is required may be authorised only on grounds provided for in ANRA and, as appropriate, in cantonal legislation (Arts 3, 8 and 9 ANRA).

ANRA provides grounds for exemption for acquisitions by banks and insurance companies, for occupational pension schemes for Swiss businesses and for charitable purposes, for heirs or legatees under wills, and in certain cases of hardship (Art. 8 ANRA; see FAQs at 47-51).

Cantonal law may provide grounds for granting authorisation to foreign non-residents for the acquisition of holiday homes and accommodation units in aparthotels, second homes and rental properties with affordable, low rents (social housing) (Art. 9 ANRA; see questions at 52-67).

Question 40

43. Are there any other exceptions to the requirement for authorisation?

Accepted Answer

43. Are there any other exceptions to the requirement for authorisation?

Yes. These are related to Switzerland’s international relations.

For example, nationals of an EU or EFTA Member State and, under certain circumstances, United Kingdom nationals who work in Switzerland as cross-border commuters (holding an EU/EFTA cross-border commuter permit G) are not subject to the authorisation requirement for the acquisition of a second home in the region where they work (Art. 7 let. j nos 1 and 2 ANRA, Art. 18a para. 3 ANRO; see 29 ff.).

Furthermore, under Article 7a ANRA in conjunction with Articles 16 and 17 of the Host State Act (SR 192.12), foreign states, international organisations and other beneficiaries under this Act who acquire property for official purposes are exempt from the requirement to obtain authorisation.

Question 41

42. Under what circumstances may the Federal Council, in exceptional cases, exempt acquisitions from the requirement for authorisation?

Accepted Answer

42. Under what circumstances may the Federal Council, in exceptional cases, exempt acquisitions from the requirement for authorisation?

A distinctive feature of ANRA is that it grants the Federal Council the power to exempt the acquisition of a property from the requirement for authorisation in individual cases, provided that the specific acquisition is in Switzerland’s national interest. The area of the property must not exceed what is necessary for its intended use (Art. 7 let. h ANRA). Only important and overriding public interests of national significance that are likely to safeguard or promote the country’s political, economic, scientific, social or cultural interests may be regarded as the federal national policy interests (Administrative Practice of Federal Authorities APFA 68.12, para. 3).

In specific cases, the Federal Council has used Article 7 letter h ANRA to exempt the acquisition of real estate by international sports organisations from the authorisation requirement. This was primarily because of the significant sporting, cultural and economic importance of globally active associations being based in Switzerland (see APFA 68.12). The Federal Council has also taken the view that developing a holiday resort (Andermatt) can be in the national interest. The Federal Council’s decision in such cases is final; there is no right of appeal against it.

Question 42

41. What exceptions to the requirement for authorisation apply based on the relationship of the person acquiring the property to the property?

Accepted Answer

41. What exceptions to the requirement for authorisation apply based on the relationship of the person acquiring the property to the property?

Acquirers who are already the co-owner or joint owner of a property are exempt from the requirement to obtain authorisation (Art. 7 let. c ANRA).

Owners of condominium units, on the other hand, require authorisation to purchase a further condominium unit, as condominium is a specific form of co-ownership. However, owners of condominium units are exempt from the requirement to obtain authorisation when exchanging their units within the same building or within the same development (Art. 7 let. d ANRA). In such cases, a smaller apartment may be exchanged for a slightly larger one, subject to payment of the difference in price, provided that the permitted floor area is not exceeded (Art. 10 paras 2 and 5 ANRO).

In addition, persons who acquire a property as compensation in kind following an expropriation, land redistribution or land consolidation procedure under federal or cantonal law are not subject to the authorisation requirement (Art. 7 let. e ANRA). Nor is authorisation required by persons who acquire a property as a replacement for another property that they have sold to a public corporation or institution (Art. 7 let. f ANRA).

Furthermore, persons who acquire a small area of land in addition to the property they already own are not required to obtain authorisation (Art. 7 let. g ANRA). This includes minor extensions to an area of land to provide a parking space, an access path or a patio area, for example, or the acquisition of living space, a storage room or a parking space in a garage, which results in a slight increase in the co-owned share. In the case of the acquisition of second homes in terms of Article 9 paragraph 1 letter c ANRA, or of holiday homes and accommodation units in aparthotels, any subsequent additional acquisition may only be made within the limits of the permitted area in each case (Art. 10 para. 4 ANRO). If an exchange of apartments or a boundary adjustment results in the permitted area being exceeded, the exception set out in Article 7 letter d or g ANRA does not apply. In such cases, the land registrar will refer the person acquiring the property to the licensing authority (Art. 10 para. 5 ANRO).

Natural persons who acquire a home as a result of the liquidation of a legal entity established before 1 February 1974, the actual purpose of which was the acquisition of real estate, are also exempt from the requirement to obtain authorisation, provided that they acquired shares in the legal entity to the relevant extent in accordance with the regulations in force at the time (Art. 7 let. i ANRA).

Question 43

40. What relationships between the parties constitute grounds for an exemption from the requirement for authorisation?

Accepted Answer

40. What relationships between the parties constitute grounds for an exemption from the requirement for authorisation?

As a general rule, statutory heirs under Swiss law are exempt from the requirement for authorisation if they inherit a property (as joint owners or in the course of the division of the estate) (Art. 7 let. a ANRA). This includes not only the heirs who might normally be expected to inherit under the rules of intestate succession (i.e. children and a spouse or registered partner), but also heirs and legatees named in a will who, as relatives of the testator, even if only potentially, i.e. in the event of all closer relatives predeceasing them, could be considered as statutory heirs, e.g. nieces or nephews. However, this exception does not apply to an acquisition that constitutes an advance on an inheritance.

“Ascendants or descendants in direct line” (e.g. parents, grandparents and children) and spouses and registered partners, are also generally exempt from the requirement for authorisation (Art. 7 let. b ANRA). However, transfers between relatives in the same line of kinship, such as between siblings, are not exempt from the requirement for authorisation. It would therefore be considered an abuse of the law for a child to sell a property to their parents and then for the parents resell it to another child shortly afterwards; these sales would be subject to authorisation, even though each transaction, considered in isolation, would not require authorisation. Indeed, the initial transfer could constitute a circumvention of the law, particularly if the child acquires the property only a short time before selling it to their parents.

Question 44

39. Exceptions prove the rule: which forms of acquisition are exempt from the authorisation requirement?

Accepted Answer

There are various exceptions to the requirement for authorisation, which relate in particular to the intended use of the property (Art. 2 para. 2 lets a and b ANRA) or to the relationship that the person acquiring the property has with the seller or with the property (Art. 7 ANRA). In addition, the Federal Council may exempt acquisitions from the requirement for authorisation where this is in the national interest. The exceptions to the requirement for authorisation are set out exhaustively in Article 2 paragraphs 2 and 3 ANRA and in Article 7 ANRA.

Question 45

38. A company owns residential properties but does not itself qualify as “residential property company”. Is a foreign non-resident allowed to acquire all the shares in this company without authorisation?

Accepted Answer

The answer is yes, unless authorisation would be needed to purchase the residential properties directly. The same rules apply to the indirect purchase of residential property as to the direct purchase. Consequently, even the indirect acquisition of the residential properties by taking over a company (i.e. acquiring all its shares) is only exempt from the requirement for authorisation in exceptional cases (see in particular Art. 2 para. 2 ANRA).

Question 46

37. Foreign non-residents may invest in a residential property company only if the shares are listed on a stock exchange in Switzerland. When is an entity considered a residential property company?

Accepted Answer

37. Foreign non-residents may invest in a residential property company only if the shares are listed on a stock exchange in Switzerland. When is an entity considered a residential property company?

Under Article 4 paragraph 1 letter e ANRA, a company is deemed to be a (residential) property company if its actual purpose is to acquire or trade in immovable property (real estate), provided that the real estate is not property used for commercial purposes that may be acquired without authorisation under Article 2 paragraph 2 letter a ANRA.

The objects of the company as stated in its articles of incorporation serve merely as a starting point for deciding whether a company is a residential property company. What is more decisive is the “actual” purpose of the company. If, from an economic perspective, residential property constitutes the bulk of a company’s business activities, it is classified as a residential property company (Federal Supreme Court 2C_1041/2016 of 28 September 2017, E. 3.3). If residential properties make up more than 20% of the company’s total assets, this can generally no longer be regarded as a secondary purpose (Dispatch of 28 May 2003 on the amendment to ANRA, BBl 2003 4357, 4361; Federal Council’s reply of 4 November 2011 to Question 09.1124 [Limited partnership for collective investment schemes]). However, when determining the company’s purpose, the circumstances as a whole must always be taken into account (Federal Supreme Court 2C_355/2009 of 19 November 2009, E. 5.1). If the only focus is on the company’s assets, this can sometimes lead to misleading results (e.g. in the case of a carpentry firm that also owns a residential property whose value accounts for more than 20% of its assets).

A residential property company which is not itself a foreign entity, but in which one or more foreign persons hold a minority stake, may itself acquire further real estate provided that it meets all the other requirements for acquisition. However, in such cases, the licensing authorities are required to verify whether the foreign non-residents holding shares in the company have acquired their shares lawfully. In the case of any acquisitions of company shares that are subject to authorisation, the authorities may decide retrospectively that authorisation is required and order that the unlawful situation be rectified (Art. 27 ANRA).

Question 47

36. In terms of the catch-all clause, what further rights might place the person acquiring the property in a “position similar to that of an owner”?

Accepted Answer

Under Article 4 paragraph 1 letter g ANRA, the acquisition of other rights which may confer on the person acquiring the property a status similar to that of the owner of a property is subject to authorisation. This catch-all clause is intended to prevent, in general terms, transactions designed to circumvent the law which, in economic terms, lead to the same result as or whose effect is similar to the acquisition of property rights. It is not necessary for the parties to deliberately try to circumvent the objectives of ANRA; what matters is not the parties’ subjective intent, but solely the objective facts of the case – in other words, what can be achieved economically by what the parties have chosen to do. The ANRO sets out examples of commercial transactions that fall under this catch-all clause (the list is not exhaustive).The following are therefore also subject to authorisation, for example:

a long-term lease with unusual contractual provisions, such as a one-off payment of rent in advance, a waiver of the requirement of the landlord’s consent for major structural alterations, or the linking of a lease to a loan from the tenant to the landlord whereby the rent is offset against the loan interest (Art. 1 para. 2 let. a ANRO);
the financing of the purchase or development of land, if the person acquiring the property or the developer becomes especially dependent on the creditor as a result of unusual conditions, the amount of the loan or the financial circumstances of the debtor (Art. 1 para. 2 let. b ANRO). Therefore, when assessing whether authorisation is required, the entire project – i.e. the acquisition of land and the development – must always be considered as a whole (BGE 102 Ib 124, E. 4);
establishing a ban on construction or similar restriction on ownership that applies to neighbouring land (Art. 1 para. 2 let. c ANRO);
the transfer of a property to a trust which results in a foreign non-resident acquiring rights to the property similar to those of an owner (see Question 17).

Question 48

35. What are some examples of transactions requiring authorisation?

Accepted Answer

The following transactions in particular are regarded as acquisitions of immovable property’ that generally require authorisation (this list is not exhaustive):

the acquisition of ownership (sole, joint or co-ownership, including condominium ownership), a building right, a right of residence or a usufruct over a property (Art. 4 para. 1 let. a ANRA);
participating in a business capable of owing assets but without legal personality (general partnerships and limited partnerships) the actual purpose of which is the acquisition of immovable property (Art. 4 para. 1 let. b ANRA);
the acquisition of the ownership or usufruct of a share in a real estate fund, the shares of which are not regularly traded on the market, or of any similar asset (Art. 4 para. 1 let. c ANRA);

Consequently, the acquisition of shares in a fund that are regularly traded on the market outside the stock exchange is not subject to authorisation. The following are not considered to be real estate funds within the meaning ANRA: investment companies with variable capital (SICAVs), investment companies with fixed capital (SICAFs) and limited partnerships for collective investment schemes as defined in the Federal Act on Collective Capital Investment Schemes (CISA, SR 951.31);

the acquisition of the ownership or usufruct of a share in a real estate SICAV the shares of which are not regularly traded on the market, or of any similar asset (Art. 4 para. 1 let. c^bis ANRA);
the acquisition of the ownership or usufruct of a share of an entity, (company or partnership limited by shares, limited liability company, cooperative), the actual object of which is to acquire immovable property, provided the shares in this entity are not listed on a stock market in Switzerland or the immovable property in question may be acquired without authorisation under Article 2 paragraph 2 letter a ANRA (Art. 4 para. 1 let. e ANRA).

Consequently, the acquisition of even a single share in an unlisted residential property company is subject to authorisation under ANRA (see the Federal Council’s dispatch on an amendment to ANRA of 28 May 2003, BBl 2003 4357). This also applies to the acquisition of non-voting shares, and even where the company is only planning to acquire property in the foreseeable future, but the shares are acquired with a view to those property acquisitions (BGE 109 Ib 95, para. 4). Participating financially in the establishment of such property companies, and – where this strengthens the position of the person acquiring the property – in increasing the capital of such companies, is also subject to authorisation (Art. 1 para. 1 let. a ANRO);

the acquisition of a property which is not covered by the exemption from authorisation under Article 2 paragraph 2 letter a ANRA, together with assets or a business (Art. 181 of the Swiss Code of Obligations (CO)) or through a merger, demerger, transformation or transfer of assets under the Merger Act, provided that this results in an increase in the rights to that property of the person acquiring the property (Art. 1 para. 1 let. b ANRO).
the acquisition of shares in a company that owns a property which serves as the main, second or holiday home of the person acquiring the shares (Art. 1 para. 1 let. c ANRO). The company need not be a property company;
the establishment and exercise of a right of purchase, pre-emption or repurchase in respect of immovable property or a share in terms of Article 4 paragraph 1 letters b, c and e ANRA (Art. 4 para. 1 let. f ANRO);
the relocation of a company’s registered office abroad, provided that it retains rights to immovable property (even if the shares in the company remain entirely in Swiss hands; Art. 4 para. 2 ANRA). The same applies where a company registered in Switzerland merges with a foreign company to form a newly established company based abroad, or is taken over by a company based abroad (emigration merger).

Using a property for a purpose other than that for which it was acquired is equivalent to acquiring it. The same grounds for granting or refusing authorisation apply to the change of use as to the other types of acquisition listed in Article 4 ANRA. A change of use that generally triggers the requirements to obtain authorisation occurs, for example, when a main home is let to a third party or is used solely as a holiday home, or when residential properties are built on land designated as business premises.

Question 49

34. In order to be recorded as the owner of a property in the land register, a foreign non-resident requires authorisation. What other transactions involving the acquisition of rights to land require authorisation?

Accepted Answer

For the purposes of ANRA, the term “acquisition of immovable property” refers not only to a transfer of land ownership recorded in the land register in the usual legal sense, but also to any transaction that gives a foreign non-resident actual control in economic terms of a property in cases where authorisation is required. Article 4 ANRA and Article 1 ANRO provide examples of transactions requiring authorisation. Furthermore, a catch-all clause defines the acquisition of any rights that confer on the person acquiring the property a position akin to that of an owner as being subject to authorisation (see Art. 4 para. 1 let. g ANRA, Question 36).

Question 50

33. I am a cross-border commuter. Am I allowed to purchase a plot of ground at my place of work in Switzerland as somewhere to park my car?

Accepted Answer

The purchase of property by cross-border commuters at their place of work for use as a parking space is subject to authorisation and will not be authorised unless there are valid grounds. The purchase of a parking space is only permitted in connection with the acquisition of a second home in the region where the person works in Switzerland, or in connection with the acquisition of a property used as a workplace.

Question 51

32. I am a cross-border commuter and I have purchased a second home, but I am due to retire soon and will be giving up my job. Do I have to sell my flat now?

Accepted Answer

Not normally, no. Under the AFMP and the EFTA Agreement, you are under no obligation to dispose of property on leaving your host country (Art. 25 para. 3 of Annex I to the AFMP and Art. 24 para. 3 of Annex K Appendix 1 to the EFTA Agreement). If, as cross-border commuter, you stop working in Switzerland, you are generally not required to sell your second home. You are free to use your former home as you wish. However, a breach of the law occurs if you had no intention from the outset of using the property as a second home for the long term, particularly if the second home was not acquired for the purpose of making it easier to work in Switzerland, but solely because cross-border commuter status allowed you to buy a property without requiring authorisation. In the case of purchases like these, the authorities may decide retrospectively that authorisation is required (Art. 25 para. 1^bis ANRA) and order the unlawful situation to be rectified (Art. 27 ANRA).

Question 52

31. As a cross-border commuter, am I allowed to let out my second home?

Accepted Answer

No. You must use the second home yourself for as long as you work in the region as a cross-border commuter. You are not allowed to rent your home to anyone else, not even a room in it. The same applies to parking spaces acquired with the second home.

Question 53

30. What is the maximum size allowed for a cross-border commuter’s second home?

Accepted Answer

30. What is the maximum size allowed for a cross-border commuter’s second home?

As a general rule, a property acquired by foreign non-residents must never be larger than is necessary for its intended use (Art. 12 let. b ANRA). The second home must therefore not be so large that its acquisition, at least in part, must be regarded simply as a capital investment. This would contravene the AFMP and the EFTA Agreement, both of which provide that pure capital investments and trading in undeveloped land and residential properties be left subject to the authorisation requirement under ANRA and thus – given that the grounds for authorisation under ANRA are very limited – effectively prohibit these activities. Subject to this proviso, however, the second home may, in principle, be as large as the buyer wishes. However, this home must be a single residential unit (Art. 25 para. 3 of Annex I to the AFMP and para. 24 para. 3 of Annex K Appendix 1 to the EFTA Agreement).

As a rule of thumb, the land registrar will not register a transaction involving a property larger than 1,000m², but instead will refer the purchaser to the licensing authority (Art. 18a para. 3 let. c ANRO). The authority must then decide whether the acquisition is still considered exempt from authorisation or whether it should be rejected on the grounds that it is simply a financial investment.

Question 54

29. When can cross-border commuters buy a second home in Switzerland?

Accepted Answer

29. When can cross-border commuters buy a second home in Switzerland?

Nationals of an EU or EFTA Member State and, under certain circumstances, UK nationals (see Question 5), who work in Switzerland as cross-border commuters (i.e. persons holding an EU/EFTA cross-border commuter permit G, known in the EU/EFTA agreements as “frontier workers”), are permitted to acquire a second home in the region where they work (Art. 25 para. 3 of Annex I to the AFMP [SR 0.142.112.681] and Art. 24 para. 3 of Annex K Appendix 1 to the EFTA Agreement [SR 0.632.31], Art. 7 let. j nos 1 and 2 ANRA, Art. 18a para. 3 ANRO). They do not need authorisation for this. The second home must make it easier for the cross-border commuter to work in Switzerland, for example by enabling them to reach their place of work in Switzerland more quickly. To be eligible for the exemption from authorisation, the cross-border commuter must acquire the second home themselves (Art. 8 ANRO). For information on the acquisition of second homes by foreign nationals who do not hold a cross-border commuter permit, please see the response to Question 62.

Cross-border commuters are subject to authorisation requirements if they wish to buy holiday homes, or make capital investments in or trade in residential properties or undeveloped land (Art. 25 para. 3 of Annex I to the AFMP and Art. 24 para. 3 of Annex K Appendix 1 to the EFTA Agreement).

Question 55

28. I bought my “main home” a while ago and would now like to move house. Do I now have to sell my “main home”?

Accepted Answer

Not normally, no. If you have acquired a property and then change your place of residence (within Switzerland or abroad), there is generally no requirement to sell what used to be your main home. You are free to use your former home as you wish. You can use it as a second home or holiday home, or let it out to third parties. You can also buy a new main home at your new place of residence without having to sell the first one. However, a breach of the law occurs if a person never had any intention of living in a property themselves on a long-term basis, particularly if they regularly change their place of residence solely for the purpose of being able to purchase several houses or apartments without requiring authorisation. In the case of purchases like these, the authorities may decide retrospectively that authorisation is required (Art. 25 para. 1^bis ANRA) and order the unlawful situation to be rectified (Art. 27 ANRA).

Question 56

27. Can I let my “main home” to someone else?

Accepted Answer

No. If you are acquiring a property, you must live in the property yourself and may not rent it out, not even on an occasional basis. This ban on letting also applies to any parking spaces acquired with the main home.

Question 57

26. How big can a “main home” be?

Accepted Answer

26. How big can a “main home” be?

As a general rule, a property acquired by a foreign non-resident must never be of a larger area than is necessary for its intended use (Art. 12 let. b ANRA). A main home must therefore not be so large that the acquisition of the property, or at least part of it, is regarded as a mere capital investment. Subject to this condition, however, a main home may, in principle, be of any size. However, it must always be a single residential unit. In theory, it is not permitted to buy an existing house with a granny flat as a main home. Exceptions are only possible if splitting off a second residential unit or dividing up a property that comprises more than one building would be impossible or unreasonable in the circumstances, and occupation by a single owner can be guaranteed (for example, by carrying out structural alterations).

As a rule of thumb, a land registrar will not record a transaction involving a property larger than 3,000m² directly in the Land Register, but will instead refer the purchaser to the licensing authority. The authority must then decide whether the acquisition is still considered exempt from authorisation or whether it should be rejected on the grounds that it is simply a financial investment.

Question 58

25. I am planning to move from abroad to Switzerland and have already found a property. Do I have to wait until I am living in Switzerland before I am allowed to buy my “main home”?

Accepted Answer

According to the case law of the Federal Supreme Court on this question (BGer 2C_876/2011 of 20 march 2012, E. 4.2), federal law will allow you as a person moving to Switzerland to buy your main home at your prospective place of lawful and actual residence before you move. However, this is subject to the condition that it is done as part of the process of moving residence to Switzerland and you can provide plausible evidence that this what you are planning to do. In such cases, the licensing authorities must verify whether you (and, if applicable, your family) are actually moving your place of residence to Switzerland. The authorities must impose the necessary conditions and monitor compliance with them.

Question 59

23. A foreign company wishes to acquire undeveloped land, or land that is largely undeveloped, for the purpose of establishing or expanding its permanent business establishment in Switzerland. Is an acquisition of this kind permitted?

Accepted Answer

23. A foreign company wishes to acquire undeveloped land, or land that is largely undeveloped, for the purpose of establishing or expanding its permanent business establishment in Switzerland. Is an acquisition of this kind permitted?

When acquiring land for a permanent business establishment, suitable land reserves amounting to around one third of the total area of ground may be acquired for the purpose of expanding the business premises in the medium-term. In justified cases, it is possible, by way of exception, to acquire larger land reserves of up to half the total site area, provided that specific plans for rapid development of the site are submitted. At the time of acquisition, therefore, around two-thirds of the total area must be built on, or construction and operation (of commercial premises such as factories, warehouses, offices, shopping centres, restaurants, workshops, or, depending on the activity, storage, parking or handling areas, or access roads) must be imminent. Around a third of the site area may remain undeveloped and unused for a longer period as a land reserve for expanding the premises in the medium-term. Vacant buildings that are no longer used for business activities should be treated in the same way as undeveloped land.

If the proportion of building land that remains undeveloped and unused exceeds one third, a decision must be obtained from the competent cantonal licensing authority. If, in exceptional cases, a land reserve exceeding the one-third limit is permitted, this must be subject to conditions that ensure that the reserve becomes used for business purposes promptly.

Question 60

22. Does the requirement for authorisation change if the premises are used not only for commercial purposes but also for residential purposes?

Accepted Answer

22. Does the requirement for authorisation change if the premises are used not only for commercial purposes but also for residential purposes?

Yes – in certain circumstances, this may mean that a foreign non-resident is not permitted to acquire the property, or that the residential portion of the property may not be included in the acquisition. Residential accommodation may only be acquired by foreign non-residents as (part of) a permanent business establishment without the need for authorisation in certain exceptional cases.

An acquisition of this kind is only permitted if the residential accommodation is essential (and not merely convenient) for operating the business on the property (e.g. for building management or technical professions where a constant or almost constant presence on or close to the business premises is essential; see Federal Supreme Court Decision 2A_103/2003 of 8 July 2003). Residential accommodation may also be acquired in this way if this is required in order to comply with residential quota regulations (Art. 2 para. 3 ANRA). According to the established case law, in exceptional cases, residential accommodation may also be acquired if it is impossible in practice to separate the accommodation from the business (for example, by selling off the accommodation as an apartment) or to do otherwise would be “disproportionate” (e.g. to expect someone to live in a house situated in the middle of a factory complex, or in individual apartments in a factory or multi-storey industrial building, particularly where access is only possible via premises used for business purposes). If there is any doubt, a declaratory order must be obtained from the competent cantonal licensing authority confirming that the acquisition does not require authorisation. In considering whether to grant the order, the authority must assess whether separating apartments from the premises so they can be individually owned would be feasible and proportionate.

Question 61

21. Does a foreign non-resident who acquires business premises have to run their own business there for the acquisition to be exempt from authorisation?

Accepted Answer

No. For the purposes of an exemption from the requirement for authorisation, it is irrelevant whether the property is used directly by the acquiring person’s business or is leased to a third party for the purpose of carrying out a commercial activity. Premises may therefore also be acquired purely as an investment.

Question 62

20. What basic requirements must be met for a foreign non-resident to purchase a site for business premises without authorisation?

Accepted Answer

20. What basic requirements must be met for a foreign non-resident to purchase a site for business premises without authorisation?

The property must be permitted to be used for commercial purposes and must actually be used continuously for such purposes (i.e. it must be what is known in ANRA as a “permanent business establishment”, e.g. factory buildings, warehouses and storage areas, offices, shopping centres, shops, hotels, restaurants, workshops, and doctors’ surgeries). Land which, for example, may not be used for commercial purposes due to spatial planning restrictions (e.g. open spaces or conservation areas, woodland, etc.) may not, as a general rule, be acquired (or co-acquired) without authorisation. Nor can it be acquired as a land reserve (see Question 23). According to the established case law, the (joint) acquisition of such land is only permitted if the land forms part of the business premises (e.g. a park serving as a recreational area for a hotel) or, in exceptional cases, where it is not possible or would be unreasonable to separate it from the part used for business purposes.

The construction or leasing of residential property is not regarded as a business activity that meets the requirements of Article 2 paragraph 2 letter a ANRA, nor is trading in residential property (Art. 3 ANRO). The acquisition of real estate by foreign non-residents for such purposes is subject to authorisation and is prohibited because there are no grounds for authorisation (exception: social housing; see the Question 66). Residential accommodation operated as a hotel, on the other hand, is regarded as a permanent business establishment and may, in principle, be acquired or built without requiring authorisation.

Incidentally, when acquiring a permanent business establishment, it is not only possible to purchase the property outright without requiring authorisation, but also to acquire other rights, such as a right to purchase, right of pre-emption or right of repurchase, and to obtain financing for buying the property and register a mortgage on it.

Question 63

19. What are the rules regarding undeveloped land in a building zone? As a foreign non-resident, do I need authorisation to make a purchase?

Accepted Answer

Generally speaking, yes. Normally, the acquisition of undeveloped land in residential, industrial or commercial zones is subject to authorisation, unless specific plans are submitted for the prompt development of the land by constructing a building that does not require authorisation (such as a main home or business premises) (see Question 23), or the land is otherwise going to be used as part of business premises (e.g. as a storage area, car park or access road) or it can be regarded as a permissible land reserve for a business premises site (see Question 23). The prolonged possession of land without using or developing it is generally regarded as an unlawful investment, even if the land is located in an industrial or commercial zone rather than a residential zone.

Question 64

18. What types of property do foreign non-residents need authorisation for?

Accepted Answer

Under the basic rule set out in Article 2 paragraph 1 ANRA, foreign non-residents require authorisation to purchase a property regardless of its intended use. The law provides for exceptions to this general rule.Foreign non-residents do not require authorisation to acquire the following properties:

business premises and, in exceptional cases, residential properties which are acquired as part of business premises (Art. 2 para. 2 let. a and para. 3 ANRA; see Questions 20-23),
a main home at their place of lawful and actual residence (Art. 2 para. 2 let. b ANRA; see Questions 24-28) as well as
a second home, provided the foreign non-resident is a cross-border commuter who is a national of an EU or EFTA member state or – under certain conditions – a UK national (Art. 7 let. j nos 1 and 2 ANRA; see Questions 29-32).

Otherwise, the acquisition of property, especially residential property, by foreign non-residents is generally subject to authorisation. In particular, the acquisition of houses and apartments, as well as land intended for building houses or apartments (see also Question 19), is subject to authorisation. Unless there are grounds for authorisation (see Questions 44 ff.), foreign non-residents are not permitted to buy or otherwise acquire such properties.

Questions and answers

1. What is the purpose of the Federal Act on the Acquisition of Immovable Property by Foreign Non-Residents (ANRA)?

2. Who are ‘foreign non-residents’, i.e. who is affected by ANRA?

3. When is authorisation for the acquisition of real estate granted to foreign non-resident natural persons?

4. Are there any foreign non-residents who do not require authorisation for an acquisition despite being resident or having a registered office abroad?

5. Who decides whether an acquisition is allowed?

6. Why does the federal government scrutinise the decisions of the cantonal authorities?

7. Does the Confederation have any other responsibilities when deciding whether an acquisition should be allowed?

8. And what is the position for people with Protection Status S?

9. What is meant by a person being “lawfully resident”?

10. Where is a person’s “actual place of residence”?

11. Does owning property in Switzerland entitle foreign nationals to a residence permit?

12. A French national resident in Switzerland, and therefore not subject to ANRA, purchases several apartment blocks as an investment. Years later, he moves back to his native France. Does he have to sell the apartment blocks before he leaves Switzerland?

13. When are legal entities or businesses capable of owning assets but without legal personality considered to be “foreign non-residents”?

14. A German national resident in Switzerland acquires shares in a company based in Switzerland. Years later, the shareholder returns to her home country. What are the implications of moving abroad for her and her shares, as well as for the company, from the perspective of ANRA?

15. Do the licensing authorities keep lists of legal entities that they recognise as not being “under foreign control”?

16. I am acting as an agent in the purchase of a property on behalf of a foreign non-resident. Is authorisation required?

17. Can I transfer my property to a trust without needing authorisation?

18. What types of property do foreign non-residents need authorisation for?

19. What are the rules regarding undeveloped land in a building zone? As a foreign non-resident, do I need authorisation to make a purchase?

20. What basic requirements must be met for a foreign non-resident to purchase a site for business premises without authorisation?

21. Does a foreign non-resident who acquires business premises have to run their own business there for the acquisition to be exempt from authorisation?

22. Does the requirement for authorisation change if the premises are used not only for commercial purposes but also for residential purposes?

23. A foreign company wishes to acquire undeveloped land, or land that is largely undeveloped, for the purpose of establishing or expanding its permanent business establishment in Switzerland. Is an acquisition of this kind permitted?

25. I am planning to move from abroad to Switzerland and have already found a property. Do I have to wait until I am living in Switzerland before I am allowed to buy my “main home”?

26. How big can a “main home” be?

27. Can I let my “main home” to someone else?

28. I bought my “main home” a while ago and would now like to move house. Do I now have to sell my “main home”?

29. When can cross-border commuters buy a second home in Switzerland?

30. What is the maximum size allowed for a cross-border commuter’s second home?

31. As a cross-border commuter, am I allowed to let out my second home?

32. I am a cross-border commuter and I have purchased a second home, but I am due to retire soon and will be giving up my job. Do I have to sell my flat now?

33. I am a cross-border commuter. Am I allowed to purchase a plot of ground at my place of work in Switzerland as somewhere to park my car?

34. In order to be recorded as the owner of a property in the land register, a foreign non-resident requires authorisation. What other transactions involving the acquisition of rights to land require authorisation?

35. What are some examples of transactions requiring authorisation?

36. In terms of the catch-all clause, what further rights might place the person acquiring the property in a “position similar to that of an owner”?

37. Foreign non-residents may invest in a residential property company only if the shares are listed on a stock exchange in Switzerland. When is an entity considered a residential property company?

38. A company owns residential properties but does not itself qualify as “residential property company”. Is a foreign non-resident allowed to acquire all the shares in this company without authorisation?

39. Exceptions prove the rule: which forms of acquisition are exempt from the authorisation requirement?

40. What relationships between the parties constitute grounds for an exemption from the requirement for authorisation?

41. What exceptions to the requirement for authorisation apply based on the relationship of the person acquiring the property to the property?

42. Under what circumstances may the Federal Council, in exceptional cases, exempt acquisitions from the requirement for authorisation?

43. Are there any other exceptions to the requirement for authorisation?

44. Grounds for authorisation at federal level

45. Are there any conditions attached to the authorisation?

46. How long is authorisation valid for?

47. Under what circumstances will banks and insurance companies requiring authorisation be granted authorisation to purchase property in Switzerland?

48. Are pension funds subject to authorisation, and when are they entitled to authorisation when purchasing property?

49. What conditions must I meet, as a foreign national, to be allowed to purchase real estate for charitable purposes?

50. I am a foreign non-resident who is a beneficiary under the terms of a will. The estate includes a property in Switzerland. I am not a statutory heir. What is legal position here?

51. When is a hardship exemption granted under Article 8 paragraph 3 ANRA?

52. What are the basic requirements for obtaining authorisation to purchase a holiday home or an accommodation unit in an aparthotel?

53. In which cantons can people living abroad purchase a holiday home or an accommodation unit in an aparthotel?

54. I've heard that holiday homes can’t be more than a certain size. If that's true: what restrictions on size apply?

55. What is the “net living area”?

56. Should areas under a sloping ceiling be included in the net living area?

57. In what circumstances will it be accepted that there is a need for a larger net living area?

58. How many holiday homes can a foreign non-resident purchase?

59. I am a foreign non-resident and would like to purchase a holiday home through my company, which is based in Switzerland. Is this allowed?

60. Is it permitted to let the holiday home to third parties?

61. Do the accommodation units in aparthotels have to be handed over to the hotel proprietor to be managed according to hotel standards?

62. What are the basic requirements for obtaining authorisation to purchase a second home?

63. Which cantons grant authorisation for a second home in a location with which the applicant has exceptionally close ties that are worthy of protection?

64. I have been granted authorisation to purchase a second home in terms of Article 9 paragraph 1 letter c ANRA. Am I free to do whatever I want with the property?

65. Do nationals of an EU or EFTA member state who hold a cross-border commuter permit also require authorisation to purchase a second home?

66. Which cantons recognise a need for social housing as a valid ground for granting authorisation, and under what circumstances will authorisation be granted?

67. Are there any other grounds for authorisation that the cantons can introduce?

68. Who decides whether to authorise an acquisition?

69. Which local authority is responsible for deciding whether authorisation is required and for granting authorisation?

Contact details cantonal authorities

70. When must an application be submitted for authorisation to purchase land or for a declaration that authorisation is not required?

71. In which cases will the land register or commercial register office or the auction authority refer the person acquiring the property to the licensing authority?

Erwerb von Grundstücken durch Personen im Ausland. Wegleitung für die Grundbuchämter / Acquisition d'immeubles par des personnes à l'étranger. Instruction aux offices du registre foncier / Acquisto di fondi da parte di persone all'estero. Istruzioni per gli ufficiali del registro fondiario

72. My notary will certify in a public deed that I am not a foreign non-resident. Can the land register office still refer me to the licensing authority?

73. Does the licensing authority only assess the need for authorisation if the person acquiring the property requests it to do so?

74. Can I appeal against a decision by the licensing authority, and who else is entitled to appeal?

75. How long do you have to decide whether to appeal?

76. When does a decision by the cantonal licensing authority become final?

77. Why does the federal government review the decisions of the cantonal authorities?

78. A transaction requiring authorisation is carried out without authorisation. What are the implications under civil and administrative law?