‘intended life tenant’ would also certainly be a beneficiary entitled to the income of the property or the use of the property during his/her lifetime, while the other beneficiaries are essentially entitled to the property after his/her death. All such interests can be freely assigned or transferred as can any other equitable ownership of land.

An alternative to strict settlement/trust of land has always been possible by using an artificially long lease with a condition for its termination. An example will be a lease of a house granted to A for seventy-five years on a rent of £1 per annum, subject to termination by serving a one-month notice by the landlord if A dies before the end of the lease.79 However, there are noticeable differences in using this method. A will never be the legal owner of the property. Furthermore, however little the rent is, he/she will still need to pay (although rentfree leases are not impossible according to one authority). A life tenant is the legal owner and does not have to pay anyone. Even only as a trustee in a trust of land created after 1997, he/she may possibly sell the land and such a disposition may well be binding without the consent or knowledge of other beneficiaries under certain circumstances.80 A tenant, however long and lucrative his/her lease agreement is, obviously cannot act on behalf of his/her landlord with regard to the freehold title to the property. However, strict settlement was losing popularity even before its prospective abolition by the Trusts of Land and Appointment of Trustees Act 1996.

France

A may grant B a lease, a contract by which the landlord undertakes to grant the tenant the undisturbed enjoyment of the property for a given period of time in return for the payment of rent. The lease is tacitly renewed at the date fixed by the parties (Civil Code, art. 1738) unless the landlord has given notice to quit (Civil Code, art. 1739). This notice can be accompanied by a proposal for renewal, which then constitutes a new offer to lease which the tenant can accept or refuse.

79An example of a lease similar in form is provided by s. 149(6) of the Law of Property Act 1925 where a lease granted for the life of a person would be converted into a fixed term lease of ninety years terminable on the death of the person. This provision was intended to deal with leases granted for indeterminable terms but at a rent or for a fine (premium) before the commencement of the 1925 Act.

80Such as through the mechanism of ‘overreaching’, as provided by ss. 2 and 27 of the Law of Property Act 1925.

In principle, the tenant only has a personal right against the landlord. This remains true for leases subject to particular rules, such as residential and agricultural leases. However, certain immovable leases (such as the hereditary lease of land (emphyteusis)) confer on the tenant a real right in the immovable property leased.

Residential leases are governed by a great variety of legislation. At present, the lease of premises for use as a principal residence or for such use combined with professional use is governed by the mandatory provisions of Law 1989–462 of 6 July 1989, as amended by various more recent enactments such as Law 2009-323 of 25 March 2009. The residence subject to the lease must be in an acceptably good order and suitable for use as a dwelling (art. 6). The contract must be drawn up in writing (art. 3) and must, in particular, state the date when the lease will take effect, and its duration. With certain exceptions (leases accessory to a profession, seasonal leases, leases of furnished premises or leases of vacation residences), the contract must be concluded for a period of at least three years if the landlord is a natural person, a non-commercial family partnership or a co-owner, and at least six years if the landlord is a juristic person (art. 10). The lease is renewed tacitly for the same term if the landlord has not given notice to quit in the manner and within the periods set by law or has not made an offer with respect to its renewal. An exception (art. 11) is the case where the landlord is a natural person who would be justified to be restored in the residence for professional or family reasons when a specific event occurs. In that case, the parties can conclude a contract for a term shorter than three years but which must be at least one year.

The regime set by the general Law on Agricultural Leases or Statut du fermage (art. L 411-1 and following on the Rural Code) contains mandatory provisions which apply, save in the cases exempted by law, whenever agricultural land is placed at a tenant’s disposal by onerous title for agricultural exploitation. In order for the tenant to secure a proper investment, it is mandatory that the duration of the lease should be at least nine years (tacitly renewable except where eighteen months’ notice to quit has been given on a legal ground). In principle, an agricultural lease must be concluded in writing, but an oral agricultural lease is also deemed valid for a period of nine years.

The legislator encourages long-term leases by the following particular rules:

(a)If the duration of the initial lease is at least eighteen years, it is renewable for nine-year periods (art. L 416-1 amended by Ordonnance 2006-870 of 13 July 2006).

(b)If the duration of the initial lease is at least twenty-five years (art. L 416-3 amended by Ordonnance 2006-870 of 13 July 2006), the parties may agree that the lease may be renewed tacitly at its expiry, with no limit as to its new duration. Each party will then be able to decide each year whether or not to terminate the lease, with effect at the end of the fourth year after the notice was given. In the absence of a stipulation as to tacit renewal, the lease expires at the end of the agreed term, without the landlord being bound to give a notice to quit.

(c)The length of a long-term lease can also be fixed so as to permit the tenant to reach retirement age (art. L 416-4). Such a lease is called a ‘career lease’ when it has a term which exceeds twenty-five years and shall expire at the end of the year in which the tenant reaches retirement age (art. L 416-5).

Where the lease is for more than twelve years, the contract must be drawn up by a notary since the law contains a mandatory provision that it must be registered in the Land Register (De«cret du 4 janvier 1955 sur la publicite« foncie`re art. 28). Since the enactment of the Loi dÕorientation agricole 2006-11 of 5 January 2006, the tenant can create a fonds agricole (Rural Code, art. L 311-3) by filing a declaration with the competent Chamber of Agriculture. The majority of the first fonds agricoles were equestrian centres, defined as agricultural, since 2005 (Rural Code, art. L 311-1, para. 1).

The legislator, in line with economic reality, regulates ‘multi-year grazing agreements’ for areas designated as mountain zones (Rural Code, art. L 481-1) in accordance with a special legal framework which differs from the framework under the Law on Agricultural Leases (Statut du fermage). This enables owners of agricultural property to lease their property to Socie«te« dÕame«nagement foncier et dÕe«tablissement rural (SAFER) (a quasi-governmental non-profit company which organises the use of rural land). The legislator also provides for partners to put agricultural property at the disposal of a partnership through a contract which is not categorised as a lease (Rural Code, art. L 411-2).

Certain leases are classified as ‘atypical’ because they confer a real right upon the tenant, because the tenant does not have exclusive use of the property, or because the tenant shares the fruits and crops of the land with the landlord.

The hereditary lease of land (emphyteusis), (Rural Code, arts. L 451-1 ff.), is not subject to the Statut de fermage and typified by its marked

agricultural character and a small rental payment (the canon emphyte«o- tique), yet it has come into urban use, accompanied by a more substantial rental payment, without this affecting its categorisation. It not only confers peaceable enjoyment of the immovable on the hereditary tenant but confers a real right, termed emphyteusis, which entitles the tenant to improve the land and to build on the land (droit de superÞcie). Although it is a time-limited interest, it has a long duration of between eighteen and ninety-nine years. This lengthy term allows the hereditary tenant to develop the land through cultivation and the construction of buildings.

The lease for construction, introduced by the law of 16 December 1964 (Code for Construction and Habitation (CCH), arts. L 251-1 ff.) is a lease under which the principal undertaking of the tenant is to erect buildings and other constructions on the land and to keep them in good condition for the entire duration of the lease (CCH, art. L 251-1). The tenant enjoys a real right comparable to emphyteusis (CCH, art. L 251-3), a time-limited building lease or surface right. The duration of the lease must be between eighteen and ninety-nine years (CCH, art. L 251-1, para. 3) without a right on the part of the landlord to give notice to quit during this period. The essential difference between this lease and emphyteusis is that the tenant in a lease for construction of buildings requires the payment of market rent as an essential counterperformance. The lease for construction is in essence a reincarnation of the Roman superÞcies.

The bail a` domaine conge«able (usus) confers on the tenant, in return for the payment of rent, the right of use and enjoyment of the land as well as a building right (surface right) for the purpose of raising livestock and growing fruit trees and vineyards. It is subject to the Statut du fermage, but is seldom used.

The bail a` complant (vineyard lease) permits the tenant to plant a vineyard on the land of another at his/her own expense and to use and exploit it for the entire lifetime of the vines. This contract resembles the one described above by virtue of the rights it confers on the tenant, yet it is not subject to the Statut du fermage and is similar to a crop-sharing arrangement obliging the tenant to share his/her crop (wine or raisins) with the landlord.

The bail a` me«tayage or sharecropping lease (BlackÕs Law Dictionary) (Rural Code, arts. L 417-1 ff.), differs from other rural leases in that the tenant undertakes to farm on the condition that he/she shares the products of the farm with the landlord in place of payment of rent.

A can grant B a usufruct of his/her property (Civil Code, arts. 578 ff.). A usufruct can be established by law (for example, in favour of the surviving spouse) or by an intentional grant on the part of the owner. A usufruct is rarely conferred by onerous title such as sale and is generally conferred gratuitously by donation or by will. Usufruct is necessarily a time-limited interest: it expires on the term agreed on or upon the death of the usufructuary, whichever occurs first (Civil Code, art. 617). The duration of a usufruct granted to a juristic person may not exceed thirty years (Civil Code, art. 619).

The usufructuary has a real right in the property: the right of ownership is divided between the usufructuary and the nude owner, with the latter destined to become full owner at the end of the usufruct. The usufructuary has the right to use and enjoy the property and to take its fruits (usus and fructus) in the same way as the owner of the property, but on condition that its substance be preserved. The usufruct over residential premises or a farm allows B, as usufructuary, to occupy the premises or exploit the farm himself, or to lease out the premises or farm and appropriate the rent as civil fruits. Since a usufruct in land is recognised as a real right, it must be executed in a notarial deed and registered in the Land Register (Decree of 1955, art. 28) for it to be enforceable against third parties. The donation of a usufruct, like all donations of rights in land, requires for its validity the preparation of a notarial deed (Civil Code, art. 931).

Rights of use and habitation are constituted in the same manner as usufruct (Civil Code, arts. 625 ff.). They also expire on the death of the holder. They are, however, less substantial than the right of usufruct: they only permit the holder to use the property or to reside on the premises with his/her family. The rights of use and habitation are subject to the same formalities as the usufruct of land.

Loan for use is the gratuitous (Civil Code, art. 1876) loan of property which can be used without damaging it (Civil Code, art. 1874). If rent is stipulated, the contract is not one of loan for use, but of lease. The lender hands over the property to the borrower for use, subject to the obligation to return it after such use (Civil Code, art. 1875). The loan for use of land does not give rise to a real right which may be registered in the Land Register. The borrower only has a personal right; the lender remains full owner (Civil Code, art. 1877). Civil Code, art. 1888 specifies that the lender may reclaim the property only on expiry of the agreed term or, failing this, only after it has served the use for which it was borrowed. Civil Code, art. 1889, however, provides that even before