What does the Lex Koller regulate?
The Lex Koller restricts the acquisition of real estate by persons abroad. Its purpose is to prevent the over-foreignization of domestic land (Art. 1 BewG).
The principle is simply formulated: Persons abroad require a permit from the competent cantonal authority to acquire real estate (Art. 2 Abs. 1 BewG). In practice, however, the examination is often demanding because it does not end with the formal buyer. Especially with real estate companies, the question regularly arises as to whether a Swiss company is actually Swiss-controlled or whether persons abroad have a dominant influence in the background.
For practical purposes, three core questions can be kept in mind. First, it must be verified whether the acquiring person or company is considered a person abroad. Second, it must be clarified whether the property is actually real estate subject to authorization. Third, it must be examined whether the specific transaction constitutes an acquisition within the meaning of the law.
When is a real estate company considered a person abroad?
A real estate company with its registered office abroad is generally considered a person abroad (Art. 5 Abs. 1 lit. b BewG). Cases in which the company has its statutory and actual seat in Switzerland but is controlled by persons abroad are more difficult. Such companies are also considered persons abroad (Art. 5 Abs. 1 lit. c BewG).
A dominant position exists if persons abroad can decisively influence the administration or management of the company due to their participation, voting rights, or for other reasons (Art. 6 Abs. 1 BewG). The law additionally works with presumptions. Foreign control is presumed, among other things, if persons abroad hold more than one-third of the share, master, or cooperative capital or command more than one-third of the votes (Art. 6 Abs. 2 lit. a BewG, Art. 6 Abs. 2 lit. b BewG).
For real estate companies, it is particularly important that financing can also be relevant. Control is presumed if persons abroad provide repayable funds that account for more than half of the difference between the company's assets and its liabilities to persons not subject to authorization (Art. 6 Abs. 2 lit. d BewG).
The Federal Supreme Court has also clarified that a significant pledging of assets and a high level of debt financing can give cause for further investigations. If the company then fails to disclose the composition of the debt capital or the identity of the pledgees, this can be taken into account to its disadvantage (BGer 2C_219/2015 E. 7.6).
Which transactions are sensitive for real estate companies?
The Lex Koller covers not only the classic purchase of a piece of land. Acquisition is defined in particular as the purchase of ownership, a building right, a right of residence, or a usufruct in real estate (Art. 4 Abs. 1 lit. a BewG).
For real estate companies, however, indirect acquisition is of central importance. The acquisition of shares in a legal entity whose actual purpose is the acquisition of real estate is also covered, unless these shares are listed on a stock exchange in Switzerland (Art. 4 Abs. 1 lit. e BewG). This means that a share deal can also be relevant under authorization law if a non-listed real estate company holds residential properties.
Also covered are rights that grant the acquiring person a position similar to that of an owner (Art. 4 Abs. 1 lit. g BewG). The ordinance mentions, among other things, long-term lease or rental agreements if the agreements exceed the scope of ordinary business transactions and place the lessor or landlord in a position of special dependence (Art. 1 Abs. 2 lit. a BewV). Financing can also become relevant if it places the buyer or builder in a position of special dependence on the creditor (Art. 1 Abs. 2 lit. b BewV).
In practice, this means: Not only purchase agreements must be put to the test. Shareholder agreements, loan agreements, pledge rights, call options, long-term rental structures, and capital increases can also play a role.
Is commercial real estate exempt from authorization?
Commercial real estate is often free of authorization, but not every commercial-sounding use is sufficient. No authorization is required for the acquisition if the land serves as a permanent business establishment for a commercial, manufacturing, or other trade run in a commercial manner, a craft business, or a liberal profession (Art. 2 Abs. 2 lit. a BewG).
The Federal Supreme Court interprets this concept of a business establishment restrictively. The property must serve directly the economic activity of an enterprise or liberal profession. The economic activity must take place in the property (BGE 147 II 281 E. 4.3).
The difference between commercial and residential use is important. The use of a property for the construction or commercial renting of residential space that does not belong to a hotel or apparthotel does not constitute a permanent business establishment (Art. 3 BewV). Residential buildings are therefore not exempt from authorization simply because they are operated economically, rented out, or held as yield-generating objects.
In the case of business establishment properties, the acquisition as a capital investment may in principle be permissible, even if the business establishment is rented or leased to third parties. This does not, however, apply as a free pass for investments in residential buildings. According to case law, the legislator wanted to facilitate investments in manufacturing and service enterprises, not to open up foreign investments in residential real estate (BGE 147 II 281 E. 4.5).
Why are residential properties particularly sensitive?
Residential properties are the classic risk area of the Lex Koller. This is particularly evident in mixed-use projects. If commercial space and apartments are combined, it must be carefully examined whether the apartments may only be acquired together or whether they remain subject to authorization on a standalone basis.
The law allows the co-acquisition of apartments or reserved areas when acquiring a business establishment property if they are prescribed by residential quota regulations (Art. 2 Abs. 3 BewG). Case law also recognizes certain co-acquisition constellations, for example when apartments are necessary for operations or a separation would be practically impossible or disproportionate (BGE 147 II 281 E. 4.3).
However, the boundary remains narrow. In the landmark case regarding staff apartments, the Federal Supreme Court held that even staff apartments for a hotel serve residential purposes and cannot be acquired without authorization as a business establishment in isolation if no co-acquisition state of facts exists (BGE 147 II 281 E. 4.7).
For real estate companies, this means: A project structure should not be examined for the first time at the land registry. The question of whether residential portions are separable, whether they are prescribed, and whether they are really only acquired together with a business establishment belongs early in the transaction planning.
What happens if the authorization requirement is unclear?
If the authorization requirement cannot be easily ruled out, an application for authorization or for a determination that no authorization is required must be submitted at the latest after the conclusion of the legal transaction or, in the absence of a legal transaction, after the acquisition (Art. 17 Abs. 1 BewG).
This is an important safety mechanism in practice. Real estate companies should not rely on an internal assessment in the case of unclear participation, financing, or usage structures. The competent cantonal authority can issue a declaratory ruling. If the authorization requirement is denied because there is no foreign control, this determination must be coupled with the condition that before any relevant change in circumstances, a new determination must be obtained (Art. 14 Abs. 5 BewG).
Evidentiary documents must also be carefully prepared. General declarations that merely dispute the authorization requirement do not provide proof (Art. 18 Abs. 3 BewV). In case BGer 2C_219/2015, a notarized confirmation of the absence of foreign control was not sufficient because it did not prove the relevant facts in a sufficiently verifiable manner (BGer 2C_219/2015 E. 6.4).
What should real estate companies specifically consider?
Real estate companies should not treat the Lex Koller purely as a land registry issue. The overall economic structure is decisive.
Prior to any transaction, it should be clear who is directly and indirectly involved, who exercises voting rights, who grants loans, who receives collateral, and what actual use the property has. In the case of foreign capital, it must be verified whether the thresholds of Art. 6 Abs. 2 BewG are reached or whether a decisive possibility of influence exists for other reasons.
In the case of share deals, it must additionally be clarified whether the target company actually has as its purpose the acquisition or holding of real estate and whether its shares are listed on a Swiss stock exchange (Art. 4 Abs. 1 lit. e BewG). In mixed-use projects, it should be examined early on whether residential portions are to be treated separately. In the case of business establishment properties, it is crucial that the economic activity actually takes place on the property and that ordinary residential space is not structured under the guise of a business establishment (Art. 3 BewV, BGE 147 II 281 E. 4.6).
In addition, a look at political developments is worthwhile. The Federal Council opened a consultation procedure on a tightening on April 15, 2026. Among other things, stricter rules are planned for commercial real estate if persons abroad do not use them operationally themselves but want to rent or lease them. According to the Mitteilung des Bundesrats, the consultation period lasts until July 15, 2026. For real estate companies with foreign investors, this is a signal to plan future structures not only under current law but also with a view to possible changes.
Conclusion
The Lex Koller is relevant for real estate companies especially when foreign investors, foreign financing, residential properties, or share deals are involved. Not only the direct purchase of real estate can require authorization, but also the acquisition of shares, an economically owner-like position, or a Swiss company controlled from abroad.
The most important practical difference lies between genuine business establishment properties and residential properties. Commercial real estate can be acquired without authorization if it serves directly an economic activity. Residential buildings, on the other hand, remain particularly strictly regulated. Those who examine early, document properly, and obtain a determination from the competent authority in case of uncertainty significantly reduce transaction risks.
Frequently Asked Questions about Lex Koller
Does the Lex Koller also apply to Swiss real estate companies?
Yes, if a Swiss real estate company is controlled by persons abroad. A company with its registered office in Switzerland can therefore still be considered a person abroad if foreign persons can exert a decisive influence on the administration or management (Art. 5 Abs. 1 lit. c BewG, Art. 6 Abs. 1 BewG).
Are office and commercial properties always exempt from authorization?
No. The acquisition is only exempt from authorization if the property serves as a permanent business establishment (Art. 2 Abs. 2 lit. a BewG). The economic activity must take place directly in the property. Pure residential use is generally not a business establishment (Art. 3 BewV).
Can a share deal fall under the Lex Koller?
Yes. The acquisition of shares in a non-listed legal entity can be considered an acquisition of real estate if the actual purpose of this company is the acquisition of real estate (Art. 4 Abs. 1 lit. e BewG).
What to do if the authorization requirement is uncertain?
If the authorization requirement cannot be clearly ruled out, an application for authorization or a determination of non-authorization requirements should be submitted to the competent cantonal authority (Art. 17 Abs. 1 BewG). This is particularly important in the case of foreign financing, complex participation structures, or mixed-use real estate projects.
