permanent arrangement. An example is where the prospective precarist has entered into negotiations for the lease of another property in six months’ time, but is awaiting the finalisation of the lease, or in a situation where the landowner has received a notice of expropriation which may only be implemented in another year’s time or where the landowner plans to demolish the property within a year. For the contract to be a precarium and thus not subject to the protective rules applying to residential, commercial or agricultural leases, strict conditions apply. Among others, it must be the joint intention of the parties to create such a temporary contract.

Denmark

Different sets of rules are relevant depending on which kind of property the right concerns. It is also of great importance how the contract is categorised. The main focus will be on contracts of synallagmatic nature, that is, where the parties to the contract both have rights and obligations. Contracts on accommodation and support (habitatio and the right of usufruct) provided by the new owner of immovable property for its former owner, especially by a child for his/her parents, are normally considered to be synallagmatic and are as such covered by the provisions of the Law on Private Housing.50 It cannot be ruled out, though, that some of these agreements are too atypical to be considered as falling under the auspices of the law. In that case, and in situations of contracts of gratuitous nature, no statutory law applies. Only the provisions of the contract and the interpretation thereof are of importance. Contracts of this kind will be treated as contracts regarding land, even though buildings are also involved, and the same rules will apply.

If B obtains the right to exploit land, the parties are free to regulate such right by almost any contractual terms. Contracts can be created for an indefinite period or be limited in time to a term agreed to by the parties. If the contract is for an indefinite period, each party can end the contract by giving notice of reasonable length,51 unless otherwise agreed to by the parties. If the duration of the contract is fixed, it will expire on the agreed date. Contracts limited in time will normally be

50See Krag Jespersen, Lejeret, vol. 1, pp. 61–3 and Western High Court decisions of 3 Dec. 1976 (UfR (1977), p. 343) and of 4 June 2003 (UfR (2003), p. 2171).

51The rule of UNIDROIT Principles Art. 5.1.1 and Principles on European Contract Law Art. 6:109 apply.

considered irrevocable.52 If the land in question has a title number in the Land Register, the time limit may not exceed thirty years53 (ten years if the land in question is part of a portion of land without title number) (Law on Subdivision of Land,54 s. 16 and Law on Farms, s. 28).55 The Law on Farms, s. 27 prescribes similar restrictions when a farm is rented in its entirety. The length of such a contract must not exceed thirty years. There are no formal requirements for the formation of the contract.

In the case of a lease of a building for residential purposes, the contract will be regulated by the Law on Private Housing56 and the Law on Farms, ss. 27 and 28. The owner (A) will normally retain permanent residence on the farm (Law on Farms, s. 8). The lease can be for an indefinite period, in which case the tenant can terminate the contract by giving three months’ notice, unless the parties have agreed that the contract is irrevocable or have agreed on a shorter or longer period of notice (Law on Private Housing, s. 81). The landlord (A) can terminate the contract by notice in only a very limited number of situations regulated by the mandatory and exhaustive rules of the Law on Private Housing, s. 83. The Law on Farms, s. 28(3) gives the landlord the opportunity to terminate the contract with a six-month notice if he/she needs the buildings for a permanent residence on the farm. The lease can be for a fixed period (Law on Private Housing, s. 80) but this can be overruled if the landlord’s reasons for fixing the period are not justifiable (Law on Private Housing, s. 80(3)). If this happens, the lease would be for an indefinite term. The parties to a fixed-term contract can include a clause in the contract that the lease may be terminated by notice of a certain length of time. If the contract does not concern a farm in its entirety, the contract must not exceed thirty years (Law on Farms, s. 28(1)). No formal requirements are to be met for the formation of the contract, but it must be in writing if one of the parties insists (Law on Private Housing, s. 4(1)).

In the case of a lease of a building for non-residential purposes, the Law on the Lease of Commercial Premises57 applies in combination with the

52See Gomard, Obligationsret, p. 17. This is not an operative rule but an assumption.

53According to court practice, it will suffice if it is possible to end the contract with thirty years’ notice: see Eastern High Court decision of 26 Mar. 1998 (UfR (1998), p. 1011).

54Consolidated Act no. 494 of 12 June 2003 and later amendments.

55Consolidated Act no. 1202 of 9 Oct. 2007.

56Consolidated Act no. 188 of 27 Feb. 2007 and later amendments available, in an unofficial translation, at www.english.ism.dk/MinistryOfSocialWelfare/legislation/ social_affairs/rent/Sider/Start.aspx.

57Act no. 934 of 20 Dec. 1999 and later amendments.

Property Act, ss. 52(2)(d) and 54(2)). Leases may be granted orally (by ‘parol’) if they are leases for a term not exceeding three years at best market rent, reasonably obtainable without taking a fine. In practice, and for obvious pragmatic reasons, short leases are usually accompanied by a written agreement to evidence the terms thereof.

At stage three, one must distinguish between registered and unregistered land. In England, there are at present two systems of publicity available. The older (and much less important) system of unregistered land depends on presenting title deeds (‘stage two documents’) to prove ownership. Furthermore, those interests that are legal in nature bind the world. Those that are equitable bind everyone except the bona Þde purchaser for value of a legal estate without notice. Excepted from that general category of equitable interests are so-called ‘land charges’, which must be placed on the Land Charges Register. This is a special register of burdens as specified in the Land Charges Act 1972. Equitable leases, being based on contracts for the sale of land, fall within Class C (iv) land charges, as defined in section 2(4) of that Act, and are void against third-party purchasers, unless registered as Land Charges (s 4(6)). Leases which have complied with stage two are legal leases in unregistered land, and bind the world.

With registered land, matters are rather different. Since 1926 (the year the Land Registration Act 1925 came into force), England has had a system of registered title, whereby the Register could be consulted by the public to see who owned what estate, and what rights and burdens were attached to such land. That system has been updated. Over 95 per cent or so of land in England is registered. In light of this, registered land will be concentrated upon. The matter is now dealt with under the new Land Registration Act 2002 in the following manner:61

(a)Equitable leases can be protected by placing notice thereof on the registered title of the land in respect of which they are granted (see generally ss. 32 ff.). If they are not so protected, it would seem that they can still bind if, at the time of the purchase, the owner of the equitable lease is in actual occupation of the land (Schedule 3(2)). Failure to do so renders the right unenforceable in any circumstances.

(b)Leases which have complied with any relevant stage two formalities, but which do not exceed seven years in term length, will bind

61See also s. 93 of the Act for the rules relating to electronic conveyancing, once this becomes the norm.

82c a s e s t u d i e s

purchasers of the registered land even if not entered onto the Register (Schedule 3(1)).

(c)Leases over seven years will have to be registered under their own title (s 4(1)(c)). Failure to register means that the leases have no effect at law

(s 27(2)(b)). They will then only have effect at equity, and must be protected in the same way as those rights in (a).62

There are a number of methods by which a lease can come to an end.63 The main ones are:

(a)effluxion of time under fixed term tenancies;

(b)giving a notice to quit under a periodic tenancy;

(c)exercise of a ‘break clause’, that is the right, conferred by contract, to end the lease;

(d)forfeiture of the lease;

(e)surrender of the lease by the tenant to the landlord (an act requiring mutuality between the parties);

(f)frustration under the lease – though this will only occur very rarely; and

(g)disclaimer of a lease in the case of bankruptcy or insolvency.

It is important to note that the two methods of terminating leases in (a) and (b) above are seldom effective to bring the relationship of landlord and tenant to an end. This is because most leases today are governed by one or other statutory code.64 These statutory codes generally aim to protect the tenant (by conferring upon him ‘security of tenure’), so that the lease cannot be terminated by notice at common law, but only by a statutory notice, generally specifying some reason (a statutory ‘ground’ or ‘case’)65 why possession is being sought by the landlord. Absent such a reason, no claim for possession may be sought.

The other significant termination method, and the only other one which requires elaboration, is forfeiture.66 A well-drafted lease will

62As to which, see Bignell and Harpum, Registered Land, paras. 3–11 ff.

63The full law relating to the termination of tenancies is too complex to deal with here. Those interested in the minutiae are referred to Lewison, WoodfallÕs Law of Landlord and Tenant, paras. 17–21 to 17–96.

64Modern private residential leases: Housing Act 1988 (creating the assured and the assured shorthold tenancy); older private residential leases: Rent Act 1977; public residential leases: Housing Act 1985; business tenancies: Part II of the Landlord and Tenant Act 1954 (as amended); agricultural tenancies: a mosaic of statutes, but the Agricultural Holdings Act 1986 and the Agricultural Tenancies Act 1995 are often encountered.

65These vary from statute to statute, but rent arrears, misconduct by the tenant or some pressing need by the landlord can frequently be encountered.

66See Land Registration Act, s. 146 (for breaches other than non-payment of rent).