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Each of the three rights mentioned must be in writing in order to be validly constituted (unless it is a lease or licence with a duration of one year or less).175 A document signed by the granter/s is required.176 This signed document must be registered for a liferent or a long lease to be made real. According to one view, a lease or a licence is not invalid even though it has not been executed in compliance with the rules, provided that one party (A) has relied on the contract, the other (B) knew of that reliance or had acquiesced in it and the first party (A) has as a result of his/her reliance been affected to a material extent and would be adversely affected to a material extent if the second party (B) were able to withdraw from the contract. It was recently held that this view does not apply to a lease.177 Given the drafting of the relevant statute, this may be correct, although it would be a considerable, and seemingly unintentional, change from the previous law.

South Africa

A can grant B a lease of the property agreed between the landlord and the tenant regarding the object of the lease, its duration, the rent to be paid and the fact that the tenant is to receive the temporary use of the property. Unless otherwise agreed, default provisions based on the intended use of the property govern the lease.178 Although writing is

not a requirement,179 the parties may require reduction to writing for the validity of or as proof of the conclusion of the lease.180 The lease

creates merely contractual rights. To acquire real (property) rights, the tenant must occupy the property in the case of a short lease (less than ten years) or have a notarial long lease (ten years or more) notarially executed and registered in the Land Register.181 A lease may be concluded for a definite term or the duration may be at the will of the landlord or tenant. If there is no agreement as to duration, it is treated as a periodic lease, the term being that under which the rent is payable.

an example of a liferent to endure so long as the liferentrix remained unmarried. Other grounds for termination are renunciation, negative prescription and confusion.

175Requirements of Writing (Scotland) Act 1995, s. 1 (henceforth ROW(S)A 95). This is, in addition to individual statutory requirements.

176ROW(S)A 95, ss. 2 and 7.

177The Advice Centre for Mortgages v. McNicoll [2006] CSOH 58, 2006 SLT 591, paras. 19–23, criticised at 2006 SLT (News) 254.

178See Cooper, Landlord and Tenant, pp. 3–4.

179General Law Amendment Act 50 of 1956, s. 1(1); Formalities, in Respect of Leases of Land Act 18 of 1969, s. 1(1).

180See Cooper, Landlord and Tenant, pp. 75–6.

181Deeds Registries Act 47 of 1937, s. 3(1)(p) and 77(1); Cooper, Landlord and Tenant, p. 276.

The Rental Housing Act 50 of 1999, dealing with residential leases, restates to a limited extent some of the common law rights and obligations of the landlord and tenant.182

A can grant B a personal servitude of usufruct over the property. Usufruct is an intensely personal, limited (subordinate) real right which entitles a person to use and enjoy another’s property and to take its fruits without impairing the substance.183 A usufruct cannot exceed the lifetime of the usufructuary.184 A usufruct is created by last will or inter vivos by an agreement between the parties. The intention of the parties must be to create a usufruct and not merely contractual rights.185 Writing is not required for an agreement to create a usufruct. To create a real (property) right, however, a notarial deed will have to be executed and registered against the title deeds of the servient property.186

It is possible for A to grant B the lesser personal servitudes of use (usus) or habitation (habitatio) over the property. The usuary of a farm may use the property and collect fruits for domestic use. The usuary of a residential property may occupy it with his/her family and let out part of the house provided he remains in occupation.187 The habitator may occupy the house or let it out. Like a usufruct, use or a right of habitation cannot extend beyond the lifetime of its holders. The contract to create such rights need not be in writing, but will have to be notarially executed and registered to have proprietary effect.188

A can grant B a revocable grant (precarium) which would entitle B to remain on A’s property gratuitously until the permission is revoked.189 No formalities are required for the creation of this interest. South African courts regard precarium as a form of tenure and require reasonable notice and sometimes a just reason for its revocation.190 Whilst disturbance of a precarist’s factual occupation gives rise to a possessory remedy, precarium is not recognised as a real right capable of registration.

182 See in general Du Bois, WilleÕs Principles, p. 910. 183 Voet, Commentarius, 7.1.3.

184Bhamjee v. Mergold Beleggings (Edms) Bpk 1983 4 SA 555 (T); Deeds Registries Act 47 of 1937, s. 66.

185Coetzee v. Malan 1979 1 SA 377 (O).

186Deeds Registries Act 47 of 1937, ss. 65 and 67; Nel, Jones: Conveyancing, pp. 214–15.

187Voet, Commentarius, 7.8.1–2; Kain v. Khan 1986 4 SA 251 (C) 256.

188Deeds Registries Act 47 of 1937, ss. 65 and 67; Nel, Jones: Conveyancing, pp. 214–15; van der Merwe, ‘Servitudes’, para. 446.

189Cooper, Landlord and Tenant, pp. 7–8. 190 Lechoana v. Cloete 1925 AD 536.

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A can grant B a loan for use (commodatum) of the property.191 Unlike lease, it is gratuitous and, unlike precarium, it lasts for a specified time or purpose and is not terminable at will. Neither handing over of the property nor writing is required for its creation. Although disturbance of factual control entitles the borrower to a possessory remedy, loan for use is not a recognised real right and cannot be registered to give it proprietary effect.

A can grant B a hereditary land lease (emphyteusis, erfpag) or perpetual quitrent, its English law equivalent adopted in South Africa. This form of tenure, mostly employed for property development on land owned by the state or public authorities, is now seldom used in practice and most existing quitrent had been created decades ago. The quitrent payable to the state was abolished and legislation provides for existing hereditary land leases (perpetual quitrent) to be converted to full ownership.192

A can grant B a hereditary building lease (superÞcies) or its English counterpart, the ninety-nine-year leasehold, also adopted in South Africa. Here again, the ninety-nine-year leasehold has swamped the RomanDutch superÞcies, and legislative provision makes conversion into ownership possible. This is also true of the statutory ninety-nine-year leasehold introduced in 1978 to grant people in Black urban areas greater security of tenure.193

A final English form of land tenure transplanted into South African law was leasehold, which could take the form of a perpetual lease, a ninety-nine year lease or a lease for an indefinite period coupled with a right of renewal. This institution was mainly used where the State did not want to grant state land as freehold, but rather as a lesser tenure. The tendency to equate leaseholders with owners, led to the statutory conversion of certain leaseholds to ownership. Thereafter leaseholds trickled down to a few isolated cases.194 I have come across seaside cottages and timeshares being sold as thirty-year leaseholds, with the rights of the holders expiring after thirty years and the public authority or developing agency being entitled to sell or lease out the cottages or time shares anew.

191Voet, Commentarius, 13.6.1; Adamson v. Boshoff 1975 3 SA 221 (C) 225.

192See Van der Merwe, De Waal and Carey Miller, ‘Property and Trust Law’, ss. 858–9.

193See further Van der Merwe, ‘Numerus clausus’, p. 802.

194See in general Van der Merwe, De Waal and Carey Miller, ‘Property and Trust Law’, s. 860.

Spain

A can grant B a lease (arrendamiento) of the property. The lease is a contract by which the landlord undertakes to provide the tenant with the enjoyment of movable or immovable property for a certain term in return for rent. It is created as soon as the parties agree on the object of the lease and the rent to be paid. In addition to general provisions in the Spanish Civil Code, leases of urban and agricultural property are primarily governed by the Law on Urban Lease (Ley de Arrendamientos Urbanos) of 24 November 1994 and the Law on Rural Lease (Ley de Arrendamientos Ru«sticos) of 26 November 2003 respectively, amended by the Act of 30 November 2005. The Law on Urban Lease draws a distinction between urban premises leased for residential purposes (arrendamiento de vivienda) and urban premises leased for other purposes (arrendamiento para uso distinto del de vivienda). The latter category includes not only periodic (seasonal) leases (arrendamiento de temporada) but also leases of premises for industrial, commercial, handicraft, professional, recreational, welfare, cultural and educational activities (Law on Urban Lease, art. 3.2).195 Urban leases for residential purposes are regulated primarily by the mandatory provisions of Titles I and IV of the Law on Urban Lease and, in the case of specified leases, by Title II of the Act. Failing this, recourse may be had to contractual arrangements between the parties and ultimately to the provisions of the Civil Code. Urban leases for non-residential purposes are regulated primarily by contractual arrangement and, failing that, by Title III of the Law on Urban Lease and, as a last resort, by the Civil Code (Law on Urban Lease, art. 4). The Law on Rural Lease defines a rural lease as a lease of land for agricultural, cattle-raising or forest exploitation (art. 1). Rural leases must be concluded for a minimum period of three years. If not, they are considered null and void (Law on Rural Lease, art. 12).196

Although writing is not required for the constitution of an urban lease (Civil Code, art. 1278), it is a requirement for a rural lease (Law on Rural Lease, art. 11.1). Nevertheless, in order to be effective vis-a`-vis third parties, a lease contract must be reduced to writing and notarially executed (Civil Code, arts. 1280–3 and 1549).197 The lease itself merely

195Leases of immovables which are excluded by this Law are listed in art. 5.

196Note that art. 12 of the Law excludes leases for less than this period. A proposed amendment to the Law on Rural Lease stipulates a minimum period of five years.

197The contract can only be registered in the Land Register if it is notarially executed, as stipulated, in the Law on Hypothecs, arts. 2–5 with reference to art. 3 of the same Law.

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creates contractual rights between the parties. It entitles the tenant to claim occupation (or delivery) of the property and obliges him to pay the agreed rent. Registration of the lease does not change the personal right into a real right but renders the lease enforceable against third parties. The fact that the tenant entered into possession, entitles him/her to institute an interdict if his/her possession is disturbed.

A can grant B a usufruct (usufructo) over the property which entitles the holder to use and enjoy the property of another subject to the obligation to preserve its form and substance (Civil Code, art. 467).198 Since the 1960s, this obligation has been interpreted as an obligation to preserve the economic destiny of property subject to the usufruct.199 A usufruct normally expires on the death of the holder (B), but can also be terminated in other ways, for example, where the object of the usufruct is destroyed (Civil Code, art. 513). If the usufructuary is a juristic person (a company or an association), Civil Code, art. 515 Civil Code limits the duration of the usufruct to thirty years.200 Neither writing nor any other formalities are required for a contract to create a usufruct,201 except in the case of an inter vivos contract without consideration which must be reduced to writing and notarially executed202 owing to the fact that the rules on donations (Civil Code, art. 633) require such a public document.203 A usufruct may also be created by will, operation of law (for example, the usufruct of the surviving spouse on the assets of a deceased spouse) or prescription (usucapio). Since, generally, with the exception of mortgages, registration is not required for the constitution of real rights, it is not necessary for the constitution of a usufruct. However, the Law on Hypothec (Mortgage), art. 13 provides that all

198Note that some Autonomous Communities, in Spain (such as Galicia, the Basque Country, Navarra, Catalonia, Arago´n and the Balearic Islands) have the right to enact their own civil legislation. Thus Laws 408–22 of Fuero Nuevo of Navarra and the Civil Code of Catalonia (Book V, Title VI, Ch. I, arts. 561-1 to 561-37) contain fairly detailed provisions on usufruct.

199Lacruz Berdejo, Elementos, vol. III-2, p. 25.

200See also Law 421 of Fuero Nuevo of Navarra. Law 411 provides that if the holder is a corporation, the ususfruct expires after a period of 100 years, unless a lesser period was stipulated or agreed upon.

201If it is not notarially executed, the real right of usufruct cannot be registered in the Land Register (Law on Hypothecs, art. 3 with reference to art. 2.2 of the same Law).

202Lacruz Berdejo, Elementos, vol III-2, p. 11.

203The Spanish Civil Code does not favour donations because it empowers certain persons. To make sure that donations are actually intended, it requires the contract of donation to be notarially executed.

limited real rights (for example, usufruct) may be registered and if registered, shall be enforceable against the world at large.

A can grant B a right of use (derecho de uso) over the property (Civil Code, art. 523-9). In principle, this right restricts the holder to the use of the property (uti) and enjoymentof its fruits to the extent necessary to meet the daily needs of the holder and his/her family (ad usum quotidianum Civil Code, art. 524).204 The right of use also expires on the death of the holder and the other causes mentioned under usufruct. Writing is not required for the constitution of a right of use but, as in the case of usufruct, a right of use created inter vivos for no consideration, has to be in writing and notarially executed (Law on Hypothec (Mortgage), art. 3 with reference to art 2.2).

A can grant B a right of habitation (derecho de habitacio«n) over the property, which entitles the holder to reside in those rooms of a house that are required to meet his/her needs and those of his/her family (Civil Code, art. 524, para. 2).205 In Spain, a right of habitation is often granted by the court to a divorced spouse entitling him/her to remain in the family home with the children. The right is created and terminated in the same way as a usufruct. Writing is not required for its constitution but if the right is to be registered it must be reduced to writing and notarially executed (Law on Hypothec (Mortgage), art. 3 with reference to art. 2.2).206 The rules relating to usufruct apply, to the extent that they are compatible, to use and habitation (Civil Code, art. 528).

A very old-fashioned type of time-limited interest occurs when A grants B a hereditary land lease (emphyteusis, enÞteusis) over immovable property such as a farm (Civil Code, arts. 1605 and 1628), usually in perpetuity. By granting the emphyteusis, A, the owner of the land, retains the ‘direct ownership’ (dominio directo) of the land while B obtains the beneficial ownership (dominio u«til) in return for the payment of rent in the form of money or a share in the produce of the land. Since the holder is allowed to transfer his/her right to another, this institution is sometimes likened to a form of co-ownership whereby co-owners are allowed freely to dispose of their shares in the property. Constitution of this long-term right of indefinite duration requires writing and notarial

204See also Law 423-426 of Fuero Nuevo of Navarra and Civil Code of Catalonia (Book V, Title VI, Ch. II).

205See also Law 423-426 of Fuero Nuevo of Navarra and Civil Code of Catalonia (Book V, Title VI, Ch. II).

206Law on Hypothecs, art. 13 provides that all limited real rights may be registered.

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execution in a public deed (Civil Code, art. 1628).207 The emphyteusis is seldom used in practice, presumably on account of its perpetual duration. For this reason, it will not be further dealt with in this report.

A can grant B a hereditary building lease (superÞcies, derecho de superÞcie). This right entitles the holder to build a structure or to plant on land belonging to someone else. The holder is considered to benefit from some kind of ‘temporary ownership’ over the structure or produce of what he has planted. The Civil Code does not contain any provisions on superÞcies, which is governed (with regard to the right to build) by arts. 40 and 41 of the Spanish Law on Land 2008, the laws of the Fuero Nuevo of Navarra and the Civil Code of Catalonia (Book V).208 The last not only regulates the right to build but also the right to plant (Catalonia Civil Code, art. 564-1). The agreement to create a right of superÞcies must be reduced to writing, notarially executed209 and registered in the Land Register (Spanish Law on Land, art. 40.2). The public deed must specify the duration of the right of superÞcies, which must not be longer than ninety-nine years (Spanish Law on Land, art. 40.2).210 The right of superÞcies can only be granted by the owner of the land (public authority or private person) (Spanish Law on Land, art. 40.2, para. 2). By contrast, Catalonia Civil Code, art. 564-3.1 allows not only owners but also holders of rights in rem to grant a right of superÞcies.

A can grant B a loan for use (commodatum, comodato) (Civil Code, art. 1741-52 and Laws 539 to 541 of the Fuero Nuevo of Navarra) whereby the lender hands over property to another person for his/her gratuitous use, subject to an obligation to return the property. Unlike a lease, the borrower does not have to pay rent. Despite a number of contrary decisions of the Spanish Supreme Court (Tribunal Supremo), which regard a contract of loan as a real contract, the majority view211 is that it should be regarded as a consensual contract which does not require the handing

207The hereditary land lease (emphyteusis, enÞteusis) can be registered, in the Land Register (Law on Hypothecs, art. 2.2).

208Law 430-432 of Fuero Nuevo of Navarra; Civil Code of Catalonia (Book V, Title VI, Ch. IV, arts. 564-1 to 564-6).

209Writing is not required, in Navarra, but Catalonia Civil Code, art. 564-3.2 requires writing and notarial execution where the holder is given a right to build or to plant on the owner’s land.

210The Navarra legislation does not set a term, whereas the Catalonia Civil Code sets a maximum term of ninety-nine years (Catalonia Civil Code, art. 564-3.2.a).

211E.g. Jordano Barea, La categorõ«a, pp. 53–7. Modern authors disagree since they are of

´ ´

opinion that the parties are bound by the contract. See de Angel Yagu¨ ez, ‘Comment’, pp. 1600–2; Lacruz Berdejo, Elementos, vol. 2, pp. 170–1.

over of the property, but merely consensus between the parties. Writing is also not required for a valid contract of loan. The contract may be for a fixed term. If the term is not fixed, the borrower is obliged to return the property after he/she has used it for the purpose for which it was borrowed.212 In cases of urgent and unforeseen need, the lender can reclaim the property before its return is due (Civil Code, art. 1749). Where no term is fixed or where the property is not lent out for a specific purpose, the loan is considered revocable and the lender can claim for the return of the property at will (Civil Code, art. 1750). Some commentators regard such revocable loan for use as a form of precarium.213

A can grant B a precarium (precario), which entitles B to remain on A’s property gratuitously until the permission is revoked. This institution differs from lease in that the precario tenens (precarista) pays no rent for the use of property. It is usually granted among members of a family and the mere will of the owner is sufficient for its creation. No formalities are required for a precarium, which may be granted expressly or tacitly. Spanish law generally regards precarium as a variety of a loan for use.214