do not exceed the benefits to which he is entitled. Hence, A should be obliged to repair the heating system and the fence as well as repaint the wall. However, by analogy to Civil Code, § 1104, he/she will not be obliged to repair the roof when it is damaged by force majeure. Neither is A obliged to renew a heating system which is obsolescent but still in working order.

If B has a hereditary building right in respect of the land, he/she is considered to be the owner of the building. Therefore, A does not have any maintenance obligations in respect of the building. As to the land, B has, depending on the contract concerned, a usufruct or a right of use. In this regard the same rules as for servitudes apply.

Belgium

In a residential or an agricultural lease, the tenant is responsible for tenant repairs and the landlord for all other repairs (Civil Code, arts. 1720 and 1754). In general, tenant repairs amount to daily maintenance and repairs of minor damage, often caused by the tenant. Civil Code, art. 1754 provides a non-exhaustive list of examples. In practice, what will count as tenant repairs is governed by local customs.64 The tenant will not be responsible for tenant repairs caused exclusively by ordinary wear and tear or force majeure (Civil Code, art. 1755). Landlord repairs are all repairs and works needed to maintain the property in such a condition that it may be used for the purpose for which it is let, with the exception of those repairs which are considered tenant repairs. Consequently, the landlord is not only responsible for extraordinary repairs (as the owner in a usufruct) and urgent repairs, but also for repairs caused by force majeure, defects, use and ordinary wear and tear. However, if these repairs are caused by failure on the part of the tenant to repair, the latter would be responsible for such omission.

These rules are mandatory (Law on Residential Leases, art. 2, § 2 as modified by the Act of 25 April 2007;65 Law on Agricultural Leases, art. 56; except for Civil Code, art. 1754 containing examples of tenant repairs). Contractual provisions deviating from these rules are forbidden.

64For a detailed list, see e.g. Nyckees, art. 1754–1756 CC.

65Under the Law on Rural Lease the Government must define what specific repairs are for the owner but presently there is no Royal Decree, in this regard.

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

In the issues regarding the central heating system, roof, dilapidated fences and repainting of the building, the landlord will be responsible. Concerning the damage of the roof by a storm, it is important to note that the tenant can in no event be held liable for damage caused by casus fortuitus. If the property is partially destroyed, the landlord cannot be forced to rebuild (Civil Code, art. 1722). The landlord will be responsible for replacement or renewal of the obsolescent central heating system. However, in so far as the system is in working order and in a good condition, the landlord is not obliged to replace it. If the landlord replaces it voluntarily under a residential or agricultural lease, he/she will have to bear the costs, but can, subject to strict conditions, claim an increase of the rent due.66

The usufructuary (B) is responsible for ordinary maintenance of the property while the nude owner is responsible for extraordinary repairs (Civil Code, art. 605). Civil Code, art. 606 limits extraordinary repairs to the following: the repair of structural walls and fac¸ades and the renewal of beams, roofs, bearing walls, the entire roof of a building and the renewal of dykes. These are usually reconstruction and renewal works necessary for the general stability and preservation of the property as such. Repairs other than extraordinary repairs are considered to be normal maintenance. However, if such extraordinary repairs are necessitated by failure on the part of the usufructuary to perform normal maintenance, the latter will be responsible for such repairs (Civil Code, art. 605).

Parties may, and often do, contractually agree that the time-limited right holder shall also be liable for extraordinary repairs. It must be noted that the distinction in the Belgian Civil Code refers to houses and requires some interpretation when applied to other buildings.

The application of these rules will lead to the following results on the concrete issues presented here. The repair of the central heating system falls under ordinary repairs and it is thus the duty of the holder to execute the repairs. If the central heating system becomes obsolescent (without being defective), the Belgian Supreme Court67 has held that the renewal or replacement of the central heating system of a theatre is an extraordinary repair for which the nude owner is responsible. If this can by analogy be applied to a house burdened with a usufruct, the nude owner will be responsible for the replacement. However, if the system is

66See for residential lease, Carette, ‘Financie¨ le aspecten’, nos. 449 ff.

67Supreme Court of 3 Feb. 1927, Pas. 1927 I 143.

still functioning adequately, and a renewal or replacement is not necessary to heat the house, it is extremely doubtful whether the owner can be forced to do this.

In general, if the damage to the roof relates to the entire roof or a substantial part thereof, the cost of repair would have to be borne by the owner; if the damage only relates to a minor part of the roof, the usufructuary will be responsible for the repairs. However, the damage of the roof during a storm could be classified as a case of casus fortuitus (toeval). Neither the owner nor the holder is obliged to rebuild what is destroyed by casus fortuitus (Civil Code, art. 607). If that is the case, none of them will be obliged to replace the roof. If the roof is badly damaged and the owner decides to replace the roof, he/she will have to bear the cost of replacement.68 If, on the other hand, the usufructuary replaces the roof, he/she bears the costs, but will have recourse against the owner for the increased value of the property on termination of the usufruct.

The repair of dilapidated fences is normally considered an ordinary repair to be borne by the usufructuary. Although Civil Code, art. 606 places the cost of the replacement of dykes on the nude owner, it is doubtful whether this may be extended by analogy to the repair of dilapidated fences. The repainting of the building when the paint flakes off is an ordinary repair for which the usufructuary is responsible.

The party who caused the damage will in principle be responsible to compensate for it. In the case where the usufructuary omits to repaint the building and the wall is seriously damaged as a result of this omission, he/she will be responsible for the repairs even if they can be classified as extraordinary repairs normally borne by the nude owner (Civil Code, art. 605).

In a hereditary land lease (emphyteusis), the landlord has no duty to repair (not even extraordinary repairs) unless otherwise agreed (Law on Emphyteutic Leases, art. 5).69 Analogous to the rules that apply to usufruct, the holder of the hereditary land lease (B) must take care of all ordinary maintenance and repairs (art. 5).70 The owner is contractually responsible for extraordinary repairs, but if such repairs are the consequence of a failure to perform normal maintenance repairs by the holder, the latter will be liable. In practice, parties often agree that

68de Page and Dekkers, Traite« e«le«mentaire, no. 349.

69Derine et al. ‘Zakenrecht’, no. 1007.

70Thus, a dispute may arise about extraordinary repairs, in the absence of a contractual agreement.