Case 5

476 c o n c l u d i n g r e m a r k s

hold the landlord responsible for the defective heating system, the dilapidated fences and the ßaking paint. Other jurisdictions, at least in the case of agricultural leases, characterise the dilapidated fences, flaking paint and minor defects in the heating system as defects arising from normal wear and tear, and place the responsibility for repairs on the tenant. In the case of personal servitudes, most reports interestingly classify these defects as minor defects which must be repaired by the holder of the personal servitude.3 The reports, however, warn that if any repair requires extraordinary expense, the obligation to carry out repairs will shift to the nude owner. The French report, for example, shows that the nude owner will be responsible for replacing the fences, but not for limited or specific repairs to the fences.

In most jurisdictions, the landlord will be responsible for the repair of the roof in order to make the premises fit for the purpose for which it is used and also if the damage was caused by force majeure.4 In the case of personal servitudes, most jurisdictions regard minor repairs of the roof necessitated by the storm (the restoration of a few tiles) as ordinary repairs for which the usufructuary is responsible, while major repairs needed for the conservation of the property are classified as extraordinary or unforeseen repairs which are the responsibility of the nude owner. Interestingly, the Belgian report concludes that if damage is caused by force majeure, neither the nude owner nor the holder of a personal servitude will be responsible for the repair of the roof and so, if either one of them does effect the repairs, he/she will be entitled to claim a contribution towards the cost of the repairs from the other.

Most jurisdictions5 will not hold the landlord responsible for the replacement of an obsolescent heating system as they classify it as an improvement and not as a repair. However, a substantial minority tries to impose responsibility on the landlord by equating obsolescence with non-repair, by considering renewal as a form of repair, or by classifying the replacement as a conservation measure or necessary for the health of the residents. In the case of personal servitudes, some jurisdictions classify the replacement of an obsolescent heating system as an extraordinary repair and hold the nude owner responsible.

3In Austria, the liability for repairs is limited to the income from the property.

4In South Africa, the rationale is that the landlord is responsible for procuring insurance and paying the insurance premiums.

5E.g. Germany, Greece, Portugal, Spain, Belgium and Poland, Case 5.

Other jurisdictions classify it as an improvement which need not be executed by any of the parties. If carried out by the holder of the personal servitude, the latter will be entitled to claim reimbursement on expiry of the servitude.6

Most jurisdictions7 accept that the default rules are not mandatory and that parties can either expressly or impliedly deviate from them in a contract of lease or in a separate contract. The tendency is to move as many repair obligations as possible to the tenant, but most jurisdictions strictly construe deviations in order to prevent the tenant being overburdened in this regard. In the case of personal servitudes, contractual provisions deviating from the default rules are only encountered in the case of personal servitudes created by agreement inter vivos, and mostly for tax purposes.8

In principle, each party is responsible for loss caused by his/her negligent acts or omissions. The tenant is therefore liable for loss caused by his/her own negligence and the negligence of members of his/her family. Conversely, the landlord is responsible for further loss caused by his/ her negligent failure to repair as in the case where the wall seriously deteriorates on account of not being repainted on time. In contrast, most jurisdictions hold the usufructuary liable for the deteriorated wall on account of non-compliance with his/her duty to preserve the substance of the property – either for the cost of repair, or in delict for the economic loss suffered by the nude owner. Other jurisdictions classify the repair of the deteriorated wall as an extraordinary repair for which the nude owner is responsible.

6Reimbursement will probably be based on negotiorum gestio. See the Greek and South African reports, Case 5.

7E.g. Germany, Greece, Portugal, Spain, South Africa, Denmark, Hungary and Poland, Case 5.

8See the German and Belgian reports, Case 5. In Germany, contractual provisions to shift the obligation for extraordinary repairs to the holder of a right of use are not accepted.

Undergrowth, dead branches and shrubs and trees uprooted or damaged by a storm may be cleared subject to the obligation of replacement. Some reports allow the usuary to collect wood, dead branches, dead trees and dead undergrowth from plantations (and presumably also from fruit trees, decorative trees and shrubs) as firewood for his/her own use and that of his/her family.

While the tenant is entitled to continue existing mining operations on the property, the opening of new mines and quarries go beyond the agricultural purpose of the land and will only be permitted with the consent of the landlord and the grant of a mining concession. Most of the jurisdictions3 consider stones and minerals as fruits and therefore allow the usufructuary to continue to work existing quarries and mines for stone and minerals.4 In general, the opening of new mines is not allowed on the grounds that it will change the economic purpose of the land, amount to disorderly exploitation5 and substantially impair the substance of the property.6 However, under special mining laws in Austria, Portugal, Spain and Italy, either the nude owner or usufructuary with the nude owner’s consent may obtain a licence to start mining operations. Because of the restricted content of their rights, the usuary and the habitator will not be entitled to open new quarries or mines or even work existing ones.

Most jurisdictions allocate standing crops on expiry of a lease or usufruct to the landlord or nude owner respectively. Under both institutions, the landlord or nude owner is obliged to compensate the tenant or usufructuary to some extent for the cost of production of the crop. Furthermore, if harvesting occurred before the termination of the lease or usufruct, the tenant or usufructuary is obliged to leave a certain quantity of seeds, hay and fertiliser as required for the orderly cultivation of the land during the subsequent season. Interestingly, South African jurisprudence allows the tenant to re-enter the land to harvest standing crops if he/she reasonably expected to harvest the crops prior to expiry of the lease.

3See e.g. the German, Austrian, Greek, Belgian, Dutch, Portuguese, Spanish and Italian reports, Case 6.

4Greek law requires an expert appointed by the court to prepare a plan for the exploitation of existing mines.

5In Germany and Portugal the usufructuary is allowed to quarry for stone if this does not conflict with the ordinary exploitation of the land or alters its economic destination.

6See the German, Greek, Belgian and Spanish reports, Case 6.

480 c o n c l u d i n g r e m a r k s

With regard to the capacity to create further rights, the tenant is only allowed to assign or sub-let the land with the landlord’s consent, whereas the usufructuary is allowed to let the property without the consent of the nude owner and to collect the rent as civil fruits until the expiry of the usufruct. In both cases, the sub-lease or lease will expire on termination of the principal lease or usufruct. Any loss suffered by the sub-tenant can be claimed from the sub-landlord. Where the lease or usufruct expires six months before the next annual rent is due, the rent is divided between the two parties proportionate to the time periods before and after the termination. Spanish, Italian and Hungarian law do not allow the usuary or the habitator to let the property. Under the French Civil Code, a surviving spouse with a right of habitation is allowed to let residential premises which no longer suit her (for example, where she has to move to a retirement home) and use the rent for necessities.