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Jacques Johner
On 3 November 2022, the Environment, Spatial planning, and Energy Committees of the National Council (ESPEC/NC) presented a preliminary draft amendment to the Federal Act on Second Homes of March 20, 2015 (SHA, RS 702) to relax the conditions for the expansion, conversion or reconstruction of buildings erected under the old law, i.e., before 11 March 2012, in municipalities with a rate of second homes that exceeds 20 percent.1
Only article 11 of the SHA is affected by this draft, without affecting other articles of the law or the ordinance.
The consultation runs until 17 February 2023.
If adopted, this revision of the SHA is good news for owners of buildings erected under the old law, in municipalities with more than 20% second homes, as they will have more freedom to modify their properties.
At present, the living arrangements of homes created under the old law is free in principle (art. 11 para. 1 SHA). However, owners are limited in their possibilities to renovate, transform, and rebuild their properties: On the one hand, extensions are allowed up to 30% of the pre-existing floor space, but not in the case of reconstruction after demolition (TF decisions 1C_478/2019 and 1C_479/2019 of May 8, 2020), and, on the other hand, no new homes can be created (art. 11 al. 3 SHA). Thus, either the existing home can be expanded, without creating a new home, or a new home can be built within the limits of the one that already exists.
The ESPEC/NC is of the opinion that this regime is too restrictive and can be relaxed while respecting the text of the Weber initiative2 and of art. 75b of the Federal Constitution, which are the basis of the law, and whose objective is to reduce the sprawl of the landscape by limiting the number of second homes.
On the initiative of National Councilor Martin Candinas3 the Council is proposing to amend paragraphs 2 and 3 of article 11 of the SHA in order to provide owners of buildings subject to the law with new options for expand the main floor area and dividing an existing property into several homes. In this way, the Council wishes to participate in the densification and modernization of housing, in the development of mountain regions and hopes to open new financing perspectives for energy renovations.
Specifically, the proposed changes are as follows:
- Merger of the current paragraphs 2 and 3 of art. 11 SHA, in order to eliminate the distinction between reconstruction following demolition (paragraph 2) and expansion (paragraph 3) of existing homes. Renovations as well as conversions, demolitions and reconstructions must now be possible within a ratio of 30% of the pre-existing useful surfaces, without restrictions on use being imposed. Within this limit, both the enlargement of existing homes and the creation of new ones, for primary or second use, would then be possible. In addition, the possibility, already recognized by the Federal Council under the current law3 of slightly shifting the location of the existing building during a reconstruction, will remain.
- Introduction of a new paragraph 3, which corresponds almost perfectly to the current paragraph 4, according to which expansions that exceed the 30% threshold are permitted, provided that the home is used as a principal residence or as tourist accommodation within the meaning of letters a and b of art. 7 para. 1 SHA.
- Introduction of a new paragraph 4 which groups together the reservations in favor of cantonal and federal law, currently formulated in paragraphs 2 and 3.
This draft amendment to the SHA was adopted by the ESPEC on 11 October 2022, by a vote of 14 to 10.
A minority is opposed to the amendment on the grounds that the legal change would threaten to lead to an increase in conversions of pre-2012 primary homes to second homes, which would violate the constitutional standard.
In order to limit this risk, these dissenting voices propose the addition of a new paragraph 3bis, to limit the possibility of cumulating the 30% increase in the main floor area with the creation of additional homes and buildings to the communes expressly designated by cantonal law. This would give the cantons some leeway to adapt their regulations to their specific circumstances.
The consultation is open from 3 November 2022, until 17 February 2023, to the cantons, the political parties represented in the Federal Assembly, the umbrella associations, the municipalities, the cities, and the mountain regions, as well as the economy working at the national level and other interested organizations and circles.
1 To verify whether or not a municipality is subject to the restrictive provisions of the SHA: https://www.are.admin.ch/are/fr/home/developpement-et-amenagement-du-territoire/droit-de-l_amenagement-du-territoire/residences-secondaires.html
2 Federal initiative “To put an end to the invasive construction of second homes” accepted by popular vote on March 11, 2012.
3 Parliamentary initiative 20.456 filed on 19 June 2020, by National Councilor Martin Candinas.
4 Opinion of the Federal Council of 31 August 2022 on interpellation 22.3761 of National Councilor Thomas Rechsteiner dated 16 June 2022, “Clarification of the law on second homes with regard to housing created under the old law within the building zone“.
