The claimant furthermore has to be in good faith, but because of the legal presumption in Civil Code, § 328 it need not be proved.33 The claim will be allowed against anyone who does not have a better title to possess, for example, if he/she is not in good faith or does not have a right to possess.34 Civil Code, § 372, however, does not provide for any protection against the landowner.35

The building right is a real or proprietary right and as such protected against everybody.36 It includes ownership as to the building and usufruct or a right of usage as to the land (Law on Building Rights, s. 6, para. 2).37 Hence the holder of a building right is protected as an owner regarding the building and as the holder of a servitude regarding the land.

Belgium

To the extent that usufruct, hereditary lease of land (emphyteusis) and the hereditary building right (superÞcies) are duly recorded with the Mortgage Register, they are all rights in rem and not merely contractual rights against A. Therefore, B can indeed act directly against C for the return of the property. This action is based on the right of pursuit (quasivindicatory right) that the holders of limited real rights have against all persons in possession of their property.

Since the quasi-vindicatory right is general, the rights of B are not altered by the fact that the dispossession has been effected by force or fraud. However, where the dispossession of B was caused by C’s fraud, B can enforce his/her rights against C even when his/her right of usufruct, emphyteusis or superÞcies has not been recorded in the Mortgage Register. C’s conduct is regarded as fraudulent where he/she dispossessed B with actual prior knowledge of B’s time-limited right. The rationale for this rule is that the formality of publicity by recording or registration in the Land Register is only needed to protect persons against third parties

332 Ob 25/50; SZ 23/225 (right of way); 3 Ob 545/50; SZ 23/287 (ususfructus); 6 Ob 111/63; SZ 36/82 (right of fishing); 2 Ob 229/73; SZ 47/29 (right of water); OGH 15.1.1986, 1 Ob 20/85; NZ (1986), p. 188; Spielbu¨ chler, in Rummel, Kommentar, § 372, para. 1; Hofmann, in Rummel, Kommentar, § 523, para. 3.

34Kletecka, in Koziol and Welser, Bu¬rgerliches Recht, vol. 1, pp. 430 ff.

35Spielbu¨ chler, in Rummel, Kommentar, § 339, para. 5.

36Spruzina, in Schwimann, Praxiskommentar III, § 1 BauRG, para. 12.

37Ibid. III, § 6 BauRG, paras. 11 ff.

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acting in good faith (and therefore not against third parties acting in bad faith who have actual notice of a prior real right).

Apart from the quasi-vindicatory action, the holder of the time-limited right in rem may have a direct claim against C based on his/her possession of the property (bezitsvordering, action possessoire). The Belgian Code of Civil Procedure, art. 1370 requires that (a) the claim based on possession must relate to immovable property which can be acquired by prescription; (b) the claimant must have been in possession of the property for at least one year; (c) the possession must be in compliance with the conditions for acquiring prescription (Civil Code, arts. 2228–35); and (d) the dispossession must have occurred less than one year before the claim was instituted. If the dispossession was effected by force38 or fraud, it is not necessary to comply with the second and third requirements.

Similarly, B as the holder of a duly recorded real right will be able to act directly against D in accordance with the right of pursuit accorded to holders of real rights (quasi-vindicatory right). This also holds for his/her possessory action.

In general, the holder of a mere personal right does not have a quasivindicatory right and neither does he/she have a possessory action, unless the dispossession was effected by force or fraud, in which case he/she can act against C as well as D. Eventually B can sue C and/or D based on quasi-contract in the absence of a contract between B and C or D. In case of a lease (not loan for use), B will be entitled to hold the owner of the property (A) (contractually) liable for the disturbance caused by the third party (C) to the extent that C relies on a legal right for his/her disturbance and his/her disturbance does not amount to a mere factual disturbance of the property (Civil Code, art. 1726).

Denmark

Such dispossession is legal only if B has caused a fundamental breach39 of contract and in this case B is of course not allowed any legal action unless C has taken the law into his/her own hands. If the dispossession is

38Force is anything that could give a reasonable person a reason to fear that he/she or his/ her estate may suffer a substantial and immediate risk, evil or agressive act.

39Fundamental breach in Danish Law is in practice identical to UNIDROIT Principles, art. 7.3.1 and the Principles on European Contract Law (PECL), art. 8:103.

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Registration Act 2002 (LRA).41 From now, adverse possession will not extinguish a paper owner’s title – instead, after ten years’ adverse possession, the squatter must now apply to be registered (LRA Schedule 6). On such application, the owner and other affected parties are notified. They will then have time to object. If they do not object within that time, registration proceeds. If they do object, the squatter may bring limited defences (LRA Schedule 6(5)). Successful applications in respect of land subject to leases mean that the squatter takes over the lease.42

France

French law distinguishes between the possessor (who possesses on his/ her own behalf as an owner) and a de«tenteur pre«caire or mere holder or detentor (who holds the property by virtue of a title, such as a lease, which justifies his/her detention while establishing that he/she is not the owner). Thus, the tenant, the agricultural tenant, the borrower under a loan for use, the usufructuary and the holder of a hereditary land lease

(emphyteusis) are detentors. The situation of the usufructuary, the holder of a right of habitation, the holder of a hereditary land lease of land (emphyteusis) and the holder of a hereditary building right (superÞcies) who have real rights in the property is more complex in practice. The usufructuary and the other holders are regarded as possessors in so far as they exercise the usufruct, hereditary lease or building right in their capacity as usufructuary or holder, but as mere holders or detentors with regard to the exercise of the right of ownership which remains vested in the nude owner of the property who exercises his/her possession through the medium of the usufructuary. Thus, the holder of a hereditary land lease (emphyteusis) exercises his/her right with regard to the property as a possessor, yet he holds the property as detentor on behalf of the owner.

The Civil Code, based on the idea that the possessor is generally the owner and that, even where this is not the case, the possessor is more worthy of protection than the third party who seeks to disturb

41The law has recently been restated by the House of Lords, in Pye (Oxford) Ltd. v. Graham [2003] 1 AC 419.

42For an explanation of the old law, see Harpum, Megarry and Wade: Property, paras. 21–061 to 21–068.

a peaceful state of affairs, protects persons in possession of the property, without regard to the basis of the right, by three possessory actions:

(a)The oldest action is the action for restoration of possession (action en re«inte«gration) which, since the Decree of 12 May 1981, allows a possessor to regain possession if he/she was dispossessed by an intentional violent act or by a voie de fait, a forceful act which is clearly unlawful.

(b)The action en complainte protects possessors whose possession has lasted at least a year.

(c)The de«nonciation de nouvel Ïuvre is intended to terminate a disturbance of possession by a new construction undertaken by a neighbour.

Traditionally, the possessory actions were open only to possessors, and not mere holders or detentors. Thus, where a third party disturbed their detention, a tenant or an agricultural tenant had to turn to the landlord who, as possessor, was the person entitled to have the possession restored. Case law permitted a detentor to bring the action for restoration of possession only in the case of forceful dispossession. Since the reform of 1975, however, detentors have been granted all the possessory actions available against all third party dispossessors other than the person from whom they derived their rights (Civil Code, arts. 2278 and 2279 (ex Civil Code, arts. 2282 and 2283; Law no. 2008–561 of 17 June 2008). Possessory actions are therefore available to B whether he/she is a possessor or a detentor and whether his/her possession or detention is based on a real right in the property (for example, a usufruct) or only on a personal right against the owner who granted him the use and enjoyment of the property (for example, a lease). In principle, these possessory actions are available only to those who possessed or held the property peacefully for at least a year. An action for repossession may, however, be brought against a dispossessor by force even if the victim possessed or held the property for less than a year (CCP, art. 1264).

Since the law extends the protection of possession to mere detentors (Civil Code, arts. 2278 and 2279; Law of 17 June 2008), a dispossessed tenant can institute an action for restoration of possession against a third party in addition to his/her recourse against the landlord to have his/her possession restored. In practice, the tenant will rather opt for an action against the landlord who is bound to restore his/her possession and to allow him/her peaceful enjoyment of the property for the duration of the lease (Civil Code, art. 1719 amended by Law no. 2009–323 of

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25 March 2009). The landlord is regarded as defaulting in this obligation if another tenant is present on the leased property43 or if a previous tenant delays vacating the property.44 The landlord will be freed from his/her obligation to restore possession if the dispossession by the third party constitutes a force majeure, namely an outside, unpredictable act which the landlord is incapable of resisting. In this regard it has been held that the landlord will remain responsible for the restoration of possession where a previous agricultural tenant unlawfully remained in possession of the property because his/her dispossession did not constitute superior force.45 Indeed, Civil Code, art. 1725 in effect provides that the landlord is not bound to protect the tenant against dispossession by force by third parties who do not, in addition, claim any right in the leased property. In such a case, the tenant has to proceed against third parties in his/her own name.

If the dispossession is caused by a person who claims to have a right in the leased property, the legislator encourages the tenant not to proceed with a possessory action against the dispossessor since it is essential that the landlord, as possessor of the property, be informed of the dispossession. Where the tenant or the agricultural tenant has been disturbed in their enjoyment of the property as a result of an action in respect of the ownership of the land, they have a right to a proportional reduction of the rent, provided that the landlord was notified of the disturbance and the impediment (Civil Code, art. 1726). Where a dispossessor claims by force to have some right with regard to the leased property or where the tenant is himself/herself summoned to court to surrender all or part of the property or to allow the exercise of a servitude, the tenant must summon the landlord to court and designate the landlord as defendant in the action if he/she wishes to be excluded from the proceedings (Civil Code, art. 1727). Moreover, the tenant of agricultural property is required to inform the landlord of all encroachments on the property under penalty of having to compensate the landlord for all expenses and damages caused by the encroachment (Civil Code, art. 1768 and Rural Code, art. L411–26 amended by Ordonnance no. 2006–870 of 13 July 2006).

Since the occupation of a holder by revocable permission (precarium) is not a lease, the provisions on leases do not apply, not even to supplement the will of the parties. Hence A, the owner, is not bound to ensure

43 Civ. 3, 16 Jan. 1980; Bull. civ. III, no. 13. 44 Civ. 3, 19 May 2004; Bull. civ. III, no. 99. 45 Civ. 3, 28 Sept. 2005; Bull. civ. III, no. 175.