Germany

B’s lease would be protected against C if he/she has obtained possession of the property prior to the transfer of ownership to C. If the landlord transfers a leased property to a third party, the latter automatically assumes the rights and obligations of the landlord arising from the lease (Civil Code, § 566(1)). This protection is based on the rule that ‘hire trumps sale’. B is protected even if C had no knowledge of the lease and irrespective of whether he/she acquired the property for value or without consideration. Since it is not possible to register lease agreements in the Land Register, there will be no publicity as to the existence of the lease. Of course, C would be entitled to compensation if A had not disclosed the existence of the lease to C.

The rule ‘hire trumps sale’ is also applicable in the case of an agricultural lease of land (Landpachtvertrag) (Civil Code, § 593b).

Rights capable of registration such as a duly registered usufruct

(Nie§brauch), right of habitation (Wohnungsrecht), permanent right of habitation (Dauerwohnungsrecht) or a permanent building right (Erbbaurecht) will be enforceable against C, irrespective of C’s knowledge or whether C acquired the property for value or not.

If, for whatever reason, the registration of B’s right in the Grundbuch is cancelled by mistake, B will only be protected if C acquired the property with actual knowledge that it is subject to B’s right (Civil Code, § 892(1)). Constructive knowledge will not exclude a bona Þde acquisition by C. If B’s right is cancelled by mistake in the Land Register (Grundbuch) without C having actual knowledge of its creation (bona Þde acquisition), a further distinction must be made between an acquisition for value and an acquisition for no consideration. If C acquired the property for value, B is limited to claims for unjust enrichment against A (Civil Code 816(1), sent. 1). If, however, C acquired the property for no consideration, B can claim that C allows his/her (B’s) real right to be registered again (Civil Code, § 816(1), sent 2).26

Greece

Greek law distinguishes between a lease on immovable property evidenced by a document with a certified date and a lease without such a date. If the lease is contained in a deed with a certified date, the transfer

26 Bundesgerichtshof BGHZ 81, 395.

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

of the property by the landlord (A) to a third party (C) would have the effect that the new owner (C) would be subrogated to the rights and obligations of the former owner A (Civil Code, art. 614). This would mean inter alia that the new owner, subject to any agreement to the contrary contained in the lease,27 must allow the tenant to exploit the property until the expiry of the lease. If the contract is not executed in the above manner, or contains a stipulation that, upon alienation of the property, the new owner shall have the right to evict the tenant, the new owner is entitled to terminate the lease on a month’s notice if the term of the lease is for a year or less than a year, or on two months’ notice if it exceeds a year (Civil Code, art. 615), unless the property was leased as a primary residence, where the contract may only be terminated after three years have elapsed from the start of the lease (Law 1703/1987, art. 2, § 1, as replaced by Law 2235/1994, art. 1, § 5). In this situation, the tenant will have a claim for compensation on account of the landlord’s breach of contract. Rent paid in advance to A, assignments of future rents by A, as well as attachments of rents effected by A’s creditors, shall not be effective vis-a`-vis the new owner C in respect of rent for more than three months, computed as from the date the new owner C notified the tenant B of the transfer of the property to himself/herself (Civil Code, art. 616).

Greek law prescribes that leases for a term exceeding nine years must be transcribed in the conveyance records of the Land Register in the district where the property is situated (Civil Code, art. 1208). If notarially executed and transcribed, such a lease will be effective against the new owner to whom the property has been transferred (Civil Code, art. 618).

We have seen that a lease of agricultural land (including a crop-sharing lease) is governed by the same provisions as an ordinary lease, unless regulated differently in specific provisions of the Civil Code (Civil Code, arts. 620 and 641, § 2). In this respect the provisions on an agricultural lease (Civil Code, art. 637) require that in the case of a lease not contained in a deed bearing a fixed date the new owner (C) must give at least six months’ advance notice should he/she wish to evict the lessee (B). Such notice shall only take effect after the leased land has been harvested.

Since usufruct is one of the recognised real rights in Greek law (Civil Code, art. 973), B’s right is absolute and can be invoked against everybody (erga omnes) subject to the proviso that the usufruct must be executed in a notarial deed and transcribed in the Land Register before registration of the transfer of the land to C (Civil Code, arts. 1143, 1033 and 1192(2)). Lack

27 Antapasis, in Georgiades and Stathopoulos, GCC, Collective Analysis, art. 614 no 29 (364).