Case 2

Most systems accept the maxim ‘sale does not break hire’ and acknowledge that a lease complying with certain formalities (which differ from jurisdiction to jurisdiction) is enforceable against thirdparty purchasers of the land. By contrast, personal servitudes, hereditary building rights and hereditary land leases are enforceable against third-party purchasers owing to the fact that they are recognised real rights and that their registration provides the necessary publicity to third parties. Interestingly, even though the Spanish Civil Code still adheres to the Roman law maxim emptio tollit locationem or venta quita renta and acknowledges in principle that sale supersedes lease, the Spanish Laws on Residential and Agricultural Leases entitle the tenant to stay on the property for various periods of time, depending on the circumstances. This is a good illustration of the functional approach of the Trento project: the eventual solution to the problem is more or less the same, no matter what route and arguments are adopted along the way.

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Case 3

In all jurisdictions, the assets or patrimony of the owner (landlord) are strictly separated from the assets or patrimony of the holder of the time-limited right. Consequently, the equity of the holder of a limited real right cannot be attached by the creditors of the owner (A) and does not fall into his/her insolvent or bankrupt estate.

In a competition with other real rights, for instance, a prior registered mortgage, most systems follow the maxim prior in tempore potior in iure and accept that the limited real right that was established first (the mortgage) has priority over the limited real right that was only established later (the time-limited right). In some jurisdictions, however, there is still a drive to protect the rights of the tenant to the greatest possible extent on the grounds of legal policy considerations. In this regard, a Solomon-like solution is achieved by South African law, which provides that the land must first be sold in execution burdened with the lease and only free from the lease if the proceeds of the first sale were not sufficient to discharge the claim of the prior mortgage creditor. Similar legal policy considerations for the protection of subsequently established personal servitudes or contractual rights like that of the borrower or precarious holder, do not exist.

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Case 4

In the course of time, most holders of time-limited interests were granted possessory remedies to protect their occupation. The modern civilian possessory remedies did not derive from the interdictal Roman system but from canon law which, in order to protect the order in society, required that the status quo ante had to be restored before going into the merits of the case.1 Most modern civil jurisdictions shed the requirement that the dispossession had to be by force and eventually got rid of the distinction between possessors and mere holders and extended the remedy to most persons in physical control of the land. Previously, mere detentors such as tenants, borrowers for use and precarious holders of land had to rely on the owner of the land to institute a possessory action to restore their physical control. The modern extension of possessory remedies to these holders has the result that both the owner and the holder now have a possessory remedy to have the status quo restored. In such a case the action of the person in physical control of the land, for instance, the tenant, as opposed to the landlord, must be preferred and the latter will only be allowed to apply for restoration of possession if the former declines.

Some jurisdictions allow recovery from a third party (D) who acquired the property from the dispossessor (C) if it can be shown that D has to an extent participated in the unlawful dispossession.2 In this regard, it is

1The historical source of modern possessory remedies is the canon reintegranda of the Dectretum Gratiani which entitled a bishop who has been expelled by a secular authority from his See to claim to be restored in his former position before the merits of his expulsion were considered. See Hahlo and Kahn, Union of South Africa, p. 454; Kleyn, ‘Die Mandament van Spolie’.

2See the German, Greek, Italian and South African reports, Case 4.

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