Comparative observations

where C is either a universal successor or acquired the property gratuitously (titulo luctrativo). If C is a particular successor he/she will only be bound if he/she had actual knowledge of the lease on transfer of the property.

In jurisdictions which do not allow leases to be registered, enforceability of the lease against C is apparently based on acceptance of the maxim ‘sale does not supersede hire’ or ‘hire trumps sale’, coupled with possession of the property or certain formal requirements like a deed of lease bearing a certified date.4 Under Danish law, ordinary leases of land, irrespective of their duration, are protected against third parties such as C even if they are not registered and without any period of previous occupancy. However, extraordinary contractual terms will be enforceable against C only if they are registered, if C had previous knowledge of their existence or if C acquires the land or premises for no consideration. If the lease trumps the sale, most jurisdictions allow the third party (C) an action against A for non-disclosure if the lease was not evident.

Interestingly, Spanish law inverts the above maxim to read emptio tollit locationem or venta quita renta and accepts in principle that sale supersedes lease, unless the parties agree otherwise or the lease is registered and C therefore has knowledge of the lease. Even so, the Laws on Residential and Agricultural Leases entitle the tenant of an unregistered lease to remain on the property for a minimum period of three and five years respectively. If C acquires the property in good faith and for value (and the lease is not registered), C will only have to respect the lease for the next five years, irrespective of the period stipulated in the lease. In all other cases where the agreed duration of the lease between A and B exceeds five years, B will be able to remain on the property until the expiry of the lease.

If the deed of lease does not have a certified date, Greek law allows C to terminate the lease and evict the tenant on a month’s notice if the lease is for a term of a year or less and on two months’ notice if the term exceeds a year. However, if the property is leased as a primary residence, the new owner may terminate the lease only after three years have elapsed from the start of the lease. To terminate an agricultural lease

4Under Belgian law, for example, a lease is enforceable against C if it bears a certified date or if the tenant has occupied residential premises for at least six months. Under Portuguese law, short residential leases for a term of fewer than six years and agricultural and forestry leases which have been reduced to writing are enforceable against C on the basis of the above maxim.

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executed in a deed without a certified date, the required period of notice is six months, which shall be effective at the end of the harvest period. If the new owner terminates the lease in this way, the tenant has a claim for compensation against the landlord (A) for breach of contract. In Poland, C may only terminate a residential lease which does not comply with the requirements if the premises have not yet been occupied.

In most jurisdictions, for instance, Germany, Austria, Greece, South Africa and Hungary, the concept of subrogation is employed to transfer5 the rights and obligations of the landlord (A) automatically to C, who thus steps into the shoes of the former landlord.6 Rents paid in advance to A, assignments of future rents by A, as well as attachments of rent effected by A’s creditors, are not effective vis-a`-vis the new owner (C) in respect of rents due more than three months after B was notified of the transfer.

In contrast to leases, most jurisdictions accept that personal servitudes are limited real rights enforceable against the world if they are registered in the Land Register or transcribed in the Mortgage Register. Thus, if a personal servitude such as usufruct is registered in the name of B, his/her rights will prevail against C. This result is based on the publicity inherent in registration and follows irrespective of whether the acquisition has been for value or not and irrespective of C’s actual or constructive knowledge.7

If C acquired the land for value and in good faith, he/she will not be bound by an unregistered personal servitude. If he/she had actual knowledge of the servitude, he/she will be bound and may be forced to co-operate in the registration of the servitude.8 In Poland, C will not be considered to be in good faith if the Register contains a notification of a pending entry or if the personal servitude concerned is a lifetime habitation right.

If, for whatever reason, the registration of B’s right is cancelled by mistake, B will only be protected in German law if C acquired the property with actual and not mere constructive knowledge of B’s personal servitude. If the acquisition by C was for value, B has a claim for unjustified enrichment against A; if it was gratuitous, B can claim reregistration of his/her real right.

5Subject to any contrary agreement in the lease.

6In Austria, this applies only if the lessee is already in possession. Uncommon ancillary contractual provisions which limit the lessor’s right of termination do not bind C. Full transfer is only possible if the lease is registered.

7Hungarian law expressly states that C will be considered to have had constructive knowledge of a registered personal servitude.

8See e.g. the Austrian, Belgian, South African and Polish reports.

All the jurisdictions treat other limited real rights recognised by their systems the same as personal servitudes. If these rights are registered in the Land Register or transcribed in the Mortgage Register, they will prevail against a later owner of the land (C). This is for instance the case with a hereditary building right (Erbbaurecht) in Germany, France, Belgium, Portugal and Spain9 and the hereditary land lease (emphyteusis) in France and Belgium. In Austria, the holder of a building right is deemed to acquire ownership, which is enforceable against C, on construction of the building. In Italy, a hereditary building right (superÞcie) is only enforceable against C if there is a stipulation to this effect in the agreement between A and C.

In France, a loan for use can be enforced against C if the date of the loan was certified before C’s acquisition or if C knew that the loan existed when he acquired the land. The precarious occupant will not, however, be able to enforce his/her rights against C.

Austria

The effect on the lease by the conveyance to C depends on the following three circumstances: (a) whether the tenant has already been given possession of the property before it was sold; (b) whether the lease falls under the Law on Lease; and (c) whether the lease is registered with the Land Register.

(a) The tenant only has personal rights against the landlord and such rights, in principle, do not have any effect on third persons. However, if the tenant has already been given possession of the property, the contract of lease is transferred to the transferee (C) and the latter substitutes the transferor (A) as landlord (Civil Code, art. 1120).10 However, contractual provisions on termination which are to the disadvantage of the landlord are not binding on the transferee. Hence, the new landlord is entitled to terminate the contract in accordance with the statutory provisions of the Civil Code, irrespective of contrary contractual provisions.11 He/she must, however, assert this right to terminate the contract within a reasonable period, otherwise the

9Under the Spanish Land Law of 2008 a hereditary building right (superÞcies) is only established once it had been registered.

101 Ob 300/01a; NZ (2003), p. 17; 7 Ob 53/01x; wobl (2002), p. 89; Iro, Kommentar, § 1120, paras. 1 and 5.

111 Ob 248/03g; 1 Ob 344/99s; JBl (2000), p. 793; Iro, Kommentar, § 1120, para. 6.

136c a s e s t u d i e s

contractual provisions on termination (if there are any) will become binding on him/her as well.12

(b)If the lease falls under the Law on Lease, the transferee takes over all rights and duties of the landlord under the lease agreement, including provisions on termination (Law on Lease, s. 2, para. 1, sent. 4). There is thus no specific right to terminate as under Civil Code, s. 1120. Only uncommon ancillary clauses are not binding on the transferee,

provided that he/she neither knew nor ought to have known about them (Law on Lease, s. 2, para. 1, sent. 5).13

(c)If the lease is registered in the Land Register, the transferee takes over all rights and duties arising from the lease, irrespective of whether

the contract falls under the Law on Lease or not. The right to terminate the contract under Civil Code, s. 1120 does not apply in this case.14

The holder of a personal servitude has a real right which is protected against third persons and also against the transferee of the land.15 Generally, the legal protection of rights arising from servitudes requires the registration of the servitude in the Land Register. However, the Austrian Supreme Court and the majority of academic writers also protect the holder of an unregistered servitude, provided that the servitude meets certain requirements of publicity.16

However, even if a non-registered servitude comes into existence, it can never be enforced against a third person who in good faith acquires the land free from encumbrances against payment17 and without the acquirer knowing or having ought to have known that a servitude exists.18 Such acquisition in good faith is not possible if the servitude is registered, because the Land Register does not allow people to rely on facts which conflict with the registration in the Land Register.19

A hereditary building right is a right in rem. As mentioned above, the holder of such a right has ownership of the building. Hence, the building cannot be sold by the landowner. As to the land, the holder of the building right has a proprietary right of use which he can also enforce against third persons.

12Iro, Kommentar, § 1120, para. 6.

139 Ob 160/02y; wobl (2003), p. 291; Iro, Kommentar, § 1120, para. 8.

143 Ob 191/98d; Iro, Kommentar, § 1120, para. 6.

157 Ob 547/95; wobl (1996), p. 240 (critical comment by Schauer). 16 See Case 1.

176 Ob 737/87; JBl (1990), p. 314; Kletecka, in Koziol and Welser, Bu¬rgerliches Recht, vol. 1, p. 364.

181 Ob 587/95; JBl (1996), p. 458; 5 Ob 563/93; SZ 66/152; 1 Ob 566/89; SZ 62/62; 1 Ob 1/84; NZ (1987), p. 22.

19Kletecka, in Koziol and Welser, Bu¬rgerliches Recht, vol. 1, p. 364.