- •Time-Limited Interests in Land
- •The Common Core of European Private Law
- •Contents
- •General editors’ preface
- •Preface
- •Contributors
- •Abbreviations
- •1 Setting the scene
- •1. The scene
- •2. Balancing the interests: a handful of common problems
- •3. Time-limited interests arising by operation of law
- •2 General introduction
- •1. Overview
- •2. The hybrid character of time-limited interests in land
- •3. The approach and purpose of this study
- •3.1. Background
- •3.2. Drawing a geographical map of the law of Europe
- •4. The genesis of the book
- •4.1. Narrowing down the topic
- •4.2. Terminology
- •5. Structure of the book
- •3 Historical evolution of the maxim ‘sale breaks hire’
- •1. Introduction
- •2. The Roman-law approach
- •3. The ius commune position
- •3.1. Medieval learned law
- •3.2. From medieval learned law to the Prussian Civil Code
- •3.3. From the Prussian Civil Code to the German Civil Code
- •4. Conclusions
- •4 The many faces of usufruct
- •1. Usufruct in tax and estate planning
- •1.1. Transferring assets yet retaining control and income
- •1.2. Overview
- •2. The concept of usufruct
- •3. The traditional face
- •3.1. Control
- •3.2. Income
- •4. The modern face of usufruct
- •4.1. Control
- •4.2. Income
- •5. The Janus face
- •6. The twisted face
- •6.1. Default rules
- •6.2. Contractual expansion
- •6.3. Limits
- •7. Conclusion
- •Comparative observations
- •Austria
- •Belgium
- •Denmark
- •England
- •France
- •Germany
- •Greece
- •Hungary
- •Italy
- •The Netherlands
- •Poland
- •Portugal
- •Scotland
- •South Africa
- •Spain
- •Comparative observations
- •Austria
- •Belgium
- •Denmark
- •England
- •France
- •Germany
- •Greece
- •Hungary
- •Italy
- •The Netherlands
- •Poland
- •Portugal
- •Scotland
- •South Africa
- •Spain
- •Comparative observations
- •Austria
- •Belgium
- •Denmark
- •England
- •France
- •Germany
- •Greece
- •Hungary
- •Italy
- •The Netherlands
- •Poland
- •Portugal
- •Scotland
- •South Africa
- •Spain
- •Comparative observations
- •Austria
- •Belgium
- •Denmark
- •England
- •France
- •Germany
- •Greece
- •Hungary
- •Italy
- •The Netherlands
- •Poland
- •Portugal
- •Scotland
- •South Africa
- •Spain
- •Comparative observations
- •Austria
- •Belgium
- •Denmark
- •England
- •France
- •Germany
- •Greece
- •Hungary
- •Italy
- •The Netherlands
- •Poland
- •Portugal
- •Scotland
- •South Africa
- •Spain
- •Comparative observations
- •Austria
- •Belgium
- •Denmark
- •England
- •France
- •Germany
- •Greece
- •Hungary
- •Italy
- •The Netherlands
- •Poland
- •Portugal
- •Scotland
- •South Africa
- •Spain
- •Comparative observations
- •Austria
- •Belgium
- •Denmark
- •England
- •France
- •Germany
- •Greece
- •Hungary
- •Italy
- •The Netherlands
- •Poland
- •Portugal
- •Scotland
- •South Africa
- •Spain
- •Comparative observations
- •Austria
- •Belgium
- •Denmark
- •England
- •France
- •Germany
- •Greece
- •Hungary
- •Italy
- •The Netherlands
- •Poland
- •Portugal
- •Scotland
- •South Africa
- •Spain
- •Comparative observations
- •Austria
- •Belgium
- •Denmark
- •England
- •France
- •Germany
- •Greece
- •Hungary
- •Italy
- •The Netherlands
- •Poland
- •Portugal
- •Scotland
- •South Africa
- •Spain
- •Comparative observations
- •Austria
- •Belgium
- •Denmark
- •England
- •France
- •Germany
- •Greece
- •Hungary
- •Italy
- •The Netherlands
- •Poland
- •Portugal
- •Scotland
- •South Africa
- •Spain
- •Comparative observations
- •Austria
- •Belgium
- •Denmark
- •England
- •France
- •Germany
- •Greece
- •Hungary
- •Italy
- •The Netherlands
- •Poland
- •Portugal
- •Scotland
- •South Africa
- •Spain
- •Comparative observations
- •Austria
- •Belgium
- •Denmark
- •England
- •France
- •Germany
- •Greece
- •Hungary
- •Italy
- •The Netherlands
- •Poland
- •Portugal
- •Scotland
- •South Africa
- •Spain
- •Case 1
- •Case 2
- •Case 3
- •Case 4
- •Case 5
- •Case 6
- •Case 7
- •Case 8
- •Case 9
- •Case 10
- •Case 11
- •Case 12
- •Belgium
- •Denmark
- •England
- •Germany
- •Greece
- •Hungary
- •Italy
- •Poland
- •Portugal
- •Scotland
- •South Africa
- •Spain
- •Bibliography
- •GENERAL BIBLIOGRAPHY
- •AUSTRIA
- •BELGIUM
- •DENMARK
- •ENGLAND
- •GERMANY
- •GREECE
- •HUNGARY
- •ITALY
- •THE NETHERLANDS
- •POLAND
- •PORTUGAL
- •SCOTLAND
- •SOUTH AFRICA
- •SPAIN
- •General index
- •Country index
- •Books in the series
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Belgium
A right in personam (such as a lease, loan for use or precarium) is generally not enforceable against third parties. However, an agricultural lease concluded between A and B will be enforceable against C, even without registration or publicity (Law on Agricultural Lease, art. 55). A residential lease will also be enforceable against C where A and B have concluded the lease with a certified date before the acquisition of ownership by C, or where the residential tenant has occupied the property for a period of at least six months. In the latter case, however, C can under strict conditions and on limited grounds terminate the lease with B (Law on Residential Lease, art. 9). The date is certified in a notarial deed and in the case of a private agreement through registration of the document,20 death of (one of) the signatories of the contract or when the principal elements of the document have been mentioned in an authentic deed such as a deed prepared by a notary (Civil Code, art. 1328). The fact that the property has been acquired for value or without consideration is not relevant in this regard.
A lease concluded for a period exceeding nine years or an acknowledgement that rent was paid for at least three years in advance must be executed in a notarial deed and recorded with the Mortgage Register in order to render it enforceable against third parties (Law on Mortgage, art. 1). This does not apply in the case of an agricultural lease concluded for a period exceeding nine years (Law on Agricultural Lease, art. 55). A residential lease concluded for more than nine years, yet not recorded in the Mortgage Register, but with a certified date or a minimum occupation period of six months, is enforceable against C only for the period of nine years that has started at the moment of C’s acquisition.
The usufruct, the hereditary land lease (emphyteusis) and the hereditary building lease (superÞcies), if created by contract, must be notarially executed and recorded in the Mortgage Register in order to be enforceable against third parties (Law on Mortgage, art. 1). When the publication formalities are fulfilled, rights in rem are enforceable against, and must be recognised by, third parties. Before recording, B’s rights will not be enforceable against third parties who contracted in good faith (without actual notice). The fact that the property has been acquired for value or without consideration, does not affect the outcome.
20Registration, to be distinguished from the recording, in the Mortgage Register, is in essence a fiscal requirement. A lease contract must be presented to the Officer of Registration of Taxes, who levies this registration tax. Since 2007, the registration of residential leases is still mandatory, but has become tax free.
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Denmark
The answer will be divided into three parts, depending on whether the use of land, the use of buildings for residential purposes or the use of buildings for other purposes, is the essential part of the contract.
If the land is sold to a new owner, B is protected as long as his/her rights can be said to be ordinary or usual.21 This follows from the Law on Registration of Property, s. 3,22 which states that these rights are protected against anyone without registration. No fixed period of previous occupancy is required. If B acquires extraordinary rights, the transfer to C will, if C is in good faith, extinguish such rights (Law on Registration of Property, s. 1) but not if C acquires the property without consideration. Moreover, B’s extraordinary rights will stand if registered in the Land Register before transfer of the property to C.
If buildings are leased for housing purposes, a rule very similar to the Law on Registration of Property, s. 3 is found in the Law on Private Housing, s. 7. This section provides that tenants’ rights have validity without registration and that the provision cannot be deviated from to the detriment of the tenant. The rights of B must therefore be respected by C without B having to prove a fixed period of previous occupancy. If the tenant B is given extraordinary rights, they must be registered in order to be enforced against a new owner of the property. If not registered, they will be extinguished if C acquires the property in good faith (Law on Registration of Property, s. 1) but not if C acquires the property without consideration.
If buildings are leased for other purposes than housing, the Law on the Lease of Commercial Premises, s. 6 contains a rule that is exactly the same as the rule found in the Law on Private Housing, s. 7. Identical rules therefore apply to the rent of premises rented for other purposes than housing.
England
Consideration is necessarily confined to the lease here. The reader is referred to Case 1. Depending on the nature of the interest which is
21The rights will normally be considered ordinary if they concern part of the land, are limited in time to a maximum of one year, or, in case the contract is unlimited, in time it can be cancelled by a maximum notice period of six months. See Mortensen,
Tinglysning, p. 103.
22Consolidated Act No. 158 of 9 Mar. 2006 and later amendments.
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being asserted against C, and depending on whether one is dealing with registered or unregistered land, different publicity requirements apply. Without compliance with those publicity requirements, that right cannot be enforced against third parties. There is no room for notice or knowledge of the interest by other means as a way of burdening the land with the lease.
France
Where a landlord sells the property subject to a lease, the purchaser may not evict the agricultural tenant, crop-sharer or tenant who concluded a lease in authentic form or with a certified date (Civil Code, art. 1743). The parties to a non-agricultural lease can reserve the right to evict the tenant (Civil Code, art. 1743). However, since mandatory legislation on commercial and residential leases forbids such clauses, they are the exception in practice.
The purchaser is only bound if the lease is concluded prior to the sale. To prevent back-dating of the lease, the lease must be in authentic form or have a certified date (Civil Code, art. 1743). A lease signed privately has a certified date from the date of registration, or from the date of the death of one of the signatories or from the date that the contract was reduced to an authentic form (Civil Code, art. 1328). Case law does not, however, regard this requirement as mandatory. The courts have stated that the purchaser is allowed tacitly to renounce his/her right to use absence of a certified date as a defence23 and has laid down that the absence of a certified date can only be raised by a good faith acquirer.24 Consequently, a purchaser is bound to respect the lease where he/she has acquired the leased land (whether for value or not) with knowledge of the existence of the lease.
In the case of a lease (such as an agricultural lease for longer than twelve years), which must be registered by public notice in the Land Register under the Decree of 1955 (De«cret de 1955), a purchaser who registers his/her right of ownership after the lease was registered must respect such lease, even if he/she had no knowledge of its existence. Yet, where the purchaser had knowledge of the existence of the lease, he/she is bound to respect it even if it had not been registered. Non-registration would prevent the lease from being enforceable against the purchaser
23 Cass. Soc., 15 July 1953; D 1953 729. 24 Civ. 3, 12 Mar. 1969; Bull. civ. III, no. 217.
140 c a s e s t u d i e s
only after a period of twelve years had expired.25 With respect to agricultural leases, art. L 411–69 of the Rural Code provides that the public official entrusted with the sale must inform the purchaser that he/she will have to indemnify the tenant for improvements on the leased property on termination of the lease.
Since A has burdened the property with a usufruct in favour of B, he/ she can only transfer the nude ownership of the land to the purchaser C. B’s usufruct is recognised as a real right, the creation of which is subject to the provisions on registration of rights in land. It can therefore be enforced against C as soon as the formal requirements of these provisions have been complied with. Civil Code, art. 621, para. 2 provides that if property subject to usufruct is sold without the consent of the usufructuary, the usufructuary continues to enjoy the usufruct, unless he/she has expressly waived it. Even the court may not, on request of a nude owner, order the sale of full ownership of land subject to a usufruct against the wishes of the usufructuary (Civil Code, art. 815–5, para. 2). The same applies in the case where land subject to a right of habitation is transferred to C.
By analogy, the same reasoning as for usufruct applies to land burdened with other real rights such as a hereditary building right (emphyteusis), a hereditary building lease and a lease for construction. A cannot transfer the full ownership of the land already burdened with these rights to C and C must respect the holders of these rights.
By analogy to a lease which, like a loan for use, only gives rise to a personal right, one can reason that the borrower (B) will only be able to enforce his/her right against the purchaser C if the date of the loan was certified prior to the sale to C or if C knew that the loan existed when he/ she acquired the property. In practice, a loan for use, often granted among family or friends, is rarely reduced to writing. Therefore, in the absence of a privately signed loan agreement, the loan for use can only be enforced against the purchaser where it can be proved that the latter had knowledge of the existence of the loan. Furthermore, case law (cited above) allows the lender to claim his/her property at any time on reasonable notice and to sell it free from any right of occupation.
The precarious position of the precarist (B) allows the owner to claim his/her property back at will and in particular to sell it free from any right of occupation. A precarist cannot enforce his/her right against a third party purchaser (C).
25 Civ. 3, 7 Mar. 2007; D 2007; AJ 942.