about by a revolution, or by wear and tear, or by the action of the elements, or in any other way not being his own act’,88 is also not allowed by the law. An example will be destruction resulting from a failure to repair.89 The deteriorating wall variant posited in this case would fall within this.

France

In the absence of a contrary stipulation in a residential lease, the tenant is only liable for routine maintenance and repairs in accordance with the use of the property that do not result from obsolescence or from an unpredictable force majeure which cannot be resisted (Civil Code, arts. 1754 and 1755). The tenant is responsible for the following routine repairs: repairs to fireplaces and mantelshelves, the plaster of the inside walls of apartments and other residences, glass panels, doors, windows, dividing walls, hinges, bolts and locks (Civil Code, art. 1754).

The repairs mentioned in the question are thus the landlord’s (A’s) responsibility as they are the result of obsolescence (the fences, the paint), or caused by force majeure (the roof) or do not amount to routine maintenance and repairs (central heating system, the roof). If the property is the principal residence of the tenant, the landlord is bound to provide a decent dwelling (Civil Code, art. 1719 1, modified by the Law of 13 December 2000 and Law no 2009–323 of 25 March 2009), which sustains the health and safety of the tenant and complies with the requirements for a residence. If the dwelling is not decent, the landlord cannot take advantage of the provisions on the nullity of the lease or of its termination to request the eviction of the tenant.

The Law of 6 July 1989 contains the same requirement (art. 20–1 amended in 2000 and in 2009), which applies to existing leases and empowers the tenant to require that the dwelling be brought into line with the minimal requirements for a decent residence. The routine upkeep of the property is borne by the tenant, who is also responsible for minor repairs as well as the repairs mentioned by a Decree of the

«

Conseil dÕEtat, unless they are the result of obsolescence, a fault or defect in construction, force majeure or a fortuitous event (art. 7 d). Again, the landlord A will be responsible for all the repairs mentioned in the question.

88Davies v. Davies (1888) 38 Ch.D. 499 per Kekewich J.

89Herne v. Benbow (1813) 4 Taunt. 764.

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The Law on Agricultural Lease expressly provides that the agricultural tenant is not responsible for repairs other than routine maintenance or minor repairs (art. L 415–4 and L 411–12).

A usufructuary is only responsible for ordinary maintenance and repairs (Civil Code, art. 605). Major repairs remain the responsibility of the owner, unless they were caused by a lack of maintenance during the course of the usufruct, in which case the usufructary will be responsible for carrying out such repairs. Major repairs are repairs made to structural walls and vaults, the restoration of supporting beams and entire roofs of buildings, the renewal of dykes and constructions which lend support, and boundary fences (Civil Code, art. 606). All other repairs are ordinary repairs (Civil Code, art. 606, para. 3). Since this text contains an exhaustive list of major repairs, case law does not easily allow an extension of this list by analogy.90 The nude owner will be charged with the restoration of the roof if it was destroyed by a storm, but not if it is only necessary to put a few tiles back into place. The owner is charged with the replacement of fences and other enclosing structures, but not with limited and specific minor repairs to such structures. The owner is also charged with the repair of structural, load-bearing walls but not with the repair of interior dividing walls. The usufructuary remains liable for the replacement of the furnace, repairs and repainting, and the redoing and repainting of the plaster of the outside walls, which are considered ordinary maintenance repairs.

Case law reasons that Civil Code, art. 605 (in the absence of a stipulation to the contrary in the contract) apportions the liability for repairs, but does not authorise the usufructuary, in the absence of a stipulation to the contrary in the deed constituting the usufruct, to take legal action to force the owner to carry out major repairs necessary for the preservation of the property.91 The usufructuary is entitled to carry out the major repairs which the owner refuses to undertake and will be entitled to seek reimbursement from the nude owner for the amount that the value of the property will have been increased by on expiry of the usufruct. Neither the nude owner nor the usufructuary is bound to rebuild what has become dilapidated owing to ordinary wear and tear or has been destroyed by a fortuitous event (Civil Code, art. 607). If the property is destroyed by an earthquake and the cost of rebuilding is significant, neither party is bound to repair the damage.92

90 Civ. 3, 27 Nov. 2002; Bull. civ. III, no. 235.

91 Civ. 3, 3 May 1989; Bull. civ. III, no. 100. 92 Civ. 3, 23 Oct. 1979; Bull. civ. III, no. 187.

Since the rights of use and of habitation are similar to a usufruct, the law applicable to usufruct also applies by analogy to these rights. The only difference is that these two rights confer less extensive rights of use and enjoyment on their holders.

Under a hereditary building right (droit de superÞcie) and a hereditary land lease (emphyteusis), the holder acquires a real right in the property. The holder of a hereditary building right must carry out the repairs mentioned above since he/she is responsible for maintaining buildings that he/she constructed in a good condition of repair (Law on Construction and Habitation, art. L 251–4). The holder is, however, not bound to repair the damage or to rebuild the building if the damage or destruction was due to a fortuitous event, force majeure or a defect in the construction of a building which already existed at the time the building right was granted. The holder must repair the damage if an existing building or the building he/she has built is damaged or destroyed by fire. In the absence of a stipulation to the contrary in the lease, the holder can demolish existing buildings with the view to rebuilding them. The holder of a hereditary lease of land (emphyteusis) has a similar obligation to maintain and repair existing and future buildings on the land.

The borrower of property is bound to exercise the care of a reasonable man (bonus paterfamilias) in the maintenance and preservation of the property since it is used gratuitously. If, during the term of the loan, the borrower is compelled to incur extraordinary expenses for the preservation of the property which were necessary and so urgent that he/she was not able to inform the lender thereof, the latter is obliged to reimburse the borrower (Civil Code, art. 1890). The borrower is not obliged to replace a heating system which is defective or obsolescent, but he/she cannot require the lender to replace the heating system either. If the borrower incurs this expenditure, as in the case of the roof, he/she will have to show that it was an extraordinary expense which was urgent and necessary for the preservation of the property. If the expenses are merely linked to the maintenance and use of the property (for example, painting and repair of the fence), the borrower will not be entitled to reimbursement. If the expenses became necessary due to his/her fault (for example, a deteriorated wall due to the lack of regular painting), the borrower will be responsible for the cost of repainting the wall. If the property has deteriorated, the borrower is presumed to be responsible for repairs, but the presumption may be rebutted by proof that the deterioration was caused by normal wear and tear or by an incident (such as a storm) for which he/she cannot be held responsible. The

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

contract may provide that the borrower will be liable for certain expenses such as maintenance costs, provided that this does not amount to remuneration which may lead a court to reclassify the contract as a lease.

Since a revocable permission (precarium) is not regulated by any special statutory provision, the rules of the Civil Code must be applied, supplementing the will of the parties. The obligations under the contract are usually apportioned by the terms of the contract. A balance is often reached by requiring the precarist to assume the obligation for routine maintenance of the property. Here, as in the case of a loan for use, this counter-prestation must remain modest in order to avoid it amounting to the payment of rent and the reclassification of the contract as a lease.

Germany

The landlord is under a general obligation to maintain the property in a condition reasonably fit for the purpose for which it is let (Civil Code, § 535 (1)). Consequently, the landlord is liable to repair all defects that interfere with the proper use and enjoyment of the property. In the absence of contrary agreement, the landlord is not bound to repair small defects which do not interfere with the tenant’s right of enjoyment.

The duty will therefore rest on A to repair all the defects mentioned in Case 5, with the exception of the situation where the central heating system becomes obsolescent without being defective. In that case, replacement will be regarded as an improvement (modernisation) rather than a repair, unless the tenant can show that the old central heating system does not operate properly. The relevant standard is, generally speaking, the one provided for in the lease agreement. The landlord is not bound to improve the property in accordance with rising standards unless the tenant can show that his/her health is in serious danger.

A will remain responsible for repainting the wall if, due to his/her omission, the wall is seriously damaged. The tenant (B) will only be liable for repairs if the defect can be ascribed to his/her negligence.

The default rule is somewhat different for agricultural leases (Landpachtvertrag). In an agricultural lease, the tenant is liable for ordinary repairs, whereas the duty to undertake extraordinary repairs rests on the landlord (Civil Code, § 586(1)). Ordinary repairs are those that arise in connection with normal wear and tear. Repairing the fences or

repainting the walls will certainly belong to the category of ordinary repairs for which the tenant is liable. The same will be true for minor defects in the central heating system. If the central heating system becomes obsolescent without being defective, replacement is an improvement (modernisation) rather than a repair, and neither the owner nor the tenant will be obliged to do anything. If the roof is seriously damaged by an unusual storm, the repair needed will be regarded as extraordinary.

There is extensive case law on the issue of the extent to which parties may deviate from the default rules described above. As the default rule regarding leases in general (Civil Code, § 535(1)) is very unfavourable to the landlord, it is common practice that the landlord will attempt to shift certain duties of repair to the tenant under the lease contract. The courts have only accepted these practices to a limited extent in relation to residential leases. As a general rule, the tenant of residential property can only assume liability for minor maintenance repairs (such as repainting the walls of the apartment) and not for major structural repairs.93

In the absence of contrary agreement, the usufructuary must ensure that the property is maintained in a proper state. He/she is only obliged to make improvements and renovations to the extent that they relate to the ordinary maintenance of the property (Civil Code, § 1041). Extraordinary repairs and expenses are borne by the owner. However, it must be noted that the owner is not bound to carry out extraordinary repairs.94 The underlying rationale seems to be that since the usufructuary is only entitled to the ordinary proceeds of the property (without transforming or substantially altering the property or excessive taking of fruits),95 as a corollary, he/she is only responsible for the ordinary maintenance of the property.

Contractual provisions deviating from the default rule as described above are frequently used and often motivated by tax reasons.96 The parties may stipulate that the usufructuary has to bear all costs, including those of extraordinary repairs.97 Conversely, they may provide for the owner’s obligation to bear the expenses of the ordinary maintenance of the property. Agreements on repairs and expenses are binding

93See Weidenkaff, in Palandt, Bu¬rgerlichen Gesetzbuch, § 535, no. 44.

94See Bundesgerichtshof, Neue Juristische Wochenschrift (NJW) (1991), p. 837.

95See Case 6.

96See Frank, in von Staudingers, Kommentar, Vorbem, § 1030, no. 106–79.

97Ibid., § 1041, no. 8.

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

on everyone who acquires the property or the limited right, provided it is registered in the Land Register (Grundbuch).

There have only been a few occasions where the courts have interpreted the relevant provision of the Civil Code (§ 1041). The repair of the central heating system will probably fall under ordinary repairs for which the usufructuary is responsible (unless stipulated otherwise by the parties). If the central heating system becomes obsolescent, the cost of its replacement will have to be borne by the owner.98 Minor repairs of the roof are borne by the usufructuary.99 The same is true if the paint of the building ßakes off100 or if the fences of the farm become dilapidated as these will typically be ordinary repairs. However, if any of the foregoing repairs involve major expenses, the repair will be regarded as extraordinary.

If the usufructuary negligently caused the damage, he/she will be responsible for the cost of repair.101 Similarly, if the usufructuary’s omission in not repainting the building eventually results in serious damage to the building, he/she will be liable to the owner for all the loss suffered through his/her neglect.

The German Civil Code (§1093(1)) provides that the rule concerning maintenance of the property applicable to usufruct (Civil Code, § 1041) applies mutatis mutandis to the right of habitation. Again, it is generally accepted that this rule is not mandatory. However, unlike in the case of usufruct, it is a controversial issue whether or not the parties can stipulate, with binding effect on third parties, that the holder has to bear the cost of extraordinary repairs.102 The better view is to allow parties to deviate from the default position to the same extent as in the case of usufruct.103

The default rule is that the holder of a permanent right of habitation must maintain the property to the same extent as the owner would have done. This means that the holder of the right is responsible for most of the maintenance of the property (Law on Apartment Ownership, § 14

98See Bundesgerichtshof, NJW (1993), p. 3198.

99See Roth, Reichsgerichtsra¬tekommentar, § 1041, no. 1; Frank, in von Staudingers, Kommentar,

§ 1041, no. 10.

100See Frank, in von Staudingers Kommentar, § 1041, no. 10.

101The owner will be entitled to claim compensation for damages suffered on the basis of breach of quasi contract (Positive Forderungsverletzung) and tort law (Civil Code, § 823(1)). See Bassenge, in Palandt, Bu¬rgerlichen Gesetzbuch, § 1041, no. 1.

102See Jerschke, BeckÕsches Notar-Handbuch, no. 161.

103Mayer, in von Staudingers, Kommentar, § 1093, no. 47.