nos. 1 and 33(2)). This corresponds to the idea that a permanent right of habitation (Dauerwohnrecht) is in many respects similar to full ownership. Agreements on repairs and expenses deviating from the default rule are possible and binding on any third party acquiring the property or the limited right, provided that such agreement is registered in the Grundbuch. In practice, tax considerations are largely responsible for the frequent use of clauses which burden the holder of the right with an obligation to bear all costs relating to the ordinary and extraordinary maintenance of the property.

There is no statutory default rule regarding the maintenance of a structure which is subject to a hereditary building right (Erbbaurecht). The Regulations (§ 2 no. 1), however, clearly state that any stipulations on the erection, maintenance and use of the structure to be built on the land form part of the content of the right. Unless the parties have agreed otherwise, neither the landowner nor the holder is under an obligation to maintain the structure in a reasonable state of repair.104 In practice, agreements on the creation of a hereditary building right often provide that the holder is under an obligation to maintain the structure and to bear all costs relating to ordinary and extraordinary repairs.

Greece

The answer to Case 5 depends on the kind of obligation each party has in the various situations.

Under the Greek Civil Code, the main obligation of the landlord is to deliver the property in a condition suitable for its agreed use and to maintain it in this condition during the entire period of the lease (Civil Code, art. 575).105 This means that the landlord will be accountable for existing and future defects in the property which prevent it from being suitable for the purpose for which it was leased. If the parties agreed on a certain quality that the property had to conform to and that proved not to exist, the tenant will be entitled to demand reduction or nonpayment of the rent (Civil Code, art. 576). The tenant will not be liable if the property deteriorates or is modified by the agreed use of the property (Civil Code, art. 592). The default position is therefore that the landlord is responsible for repairs necessitated by an existing defect in

104von Oefele and Winkler, Handbuch, no. 4.48.

105Rapsomanikis, in Georgiades and Stathopoulos, GCC, Collective Analysis, art. 575 (289–91).

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

the property or a defect which appears later which makes the property unfit for the purposes for which it was leased. However, Civil Code, arts. 575 and 592 are not mandatory: it is thus possible for the parties to

agree either expressly or impliedly to shift the obligation for repairs to the tenant.106

If the central heating system of a leased residence becomes defective or the fences on the farm becomes dilapidated, it can either be the result of a defect that already existed at the conclusion of the lease or a defect that appeared later. This will certainly make the residence and the farm unfit for the purposes for which they are respectively leased. Since the tenant is not responsible for defects that result from deterioration of the property, the landlord will be under an obligation to repair the heating system and the dilapidated fences in the above two cases.107 The position will be the same if the paint on the building ßakes off. There can be little doubt that this will be the result of ordinary deterioration. If the roof is damaged in a storm, the residential property will certainly no longer be fit for the purpose for which it is leased. Here again the landlord will be responsible for the repair of the roof if the repair costs are not excessive. If the costs are excessive, the partial destruction of the property will be equated with total destruction and, consequently, dissolution of the lease.108

The replacement of the obsolescent heating system with a more up to date system will be classified as an improvement rather than a repair. None of the parties will be obliged to replace the heating system, and if the tenant does so, it will probably be classified as a useful expense (not a necessary expense since the old central heating system will still be able to function) for which the tenant can claim under the provisions on voluntary agency (negotiorum gestio) (Civil Code, art. 591).109

The Greek Civil Code contains two provisions which apply to the case where one of the parties causes the damage. First, it provides that the landlord is not responsible to the tenant for actual defects or the lack of agreed qualities known to the tenant at the time of the conclusion of the

106Rapsomanikis, in Georgiades and Stathopoulos, GCC, Collective Analysis, art. 575, no. 16 (291) and art. 590–2, no. 12 (315).

107Filios, Obligations, 209.

108See Athens Court of Appeal 5178/1998; EllDni (1993), p. 1097; 2771/2001, published at Nomos.

109Filios, Obligations, 212; Rapsomanikis, in Georgiades and Stathopoulos, GCC, Collective Analysis, art. 590–2, no. 6 (314); Athens Court of Appeal 7303/2000; EllDni (2002), pp. 227 ff.

contract or which were unknown to him/her due to gross negligence on the part of the tenant (Civil Code, arts. 579 and 580). The tenant seems to be personally barred from pleading defects or lack of qualities of which he/she had knowledge, or lack of knowledge on account of gross negligence.110 Secondly, Civil Code, art. 592 excludes the tenant’s liability only in cases of deterioration or modifications due to the agreed use of the property. From this it is implied that the tenant is responsible for damage that he/she has caused to the property.

If the landlord was originally responsible for the repainting of the wall which has flaked off, he will also be responsible for more serious damage to the wall caused by his/her omission to repair. However, the tenant has an obligation to notify the landlord of all defects that appear during the currency of the lease (Civil Code, art. 589). If the further damage to the wall can be ascribed to the failure on the part of the tenant to give timeous notice, he/she will be responsible for the repair of the wall.111

Several provisions of the Greek Civil Code deal with the usufructuaryÕs maintenance obligations in respect of the property subject to the usufruct. First, there is a general obligation on the usufructuary to use and enjoy the fruits of the property while preserving (without impairing) the substance of the property (Civil Code, art. 1142). This is supplemented by the more detailed provision that the usufructuary is obliged to preserve the present economic purpose of the property and to exploit the property with due care and in an orderly way, without effecting substantial changes to the property (Civil Code, art. 1148). Finally, the usufructuary is specifically obliged to take care of the repair and renewal of the property. However, he/she is only bound to bear the expenses related to the usual maintenance of the property (Civil Code, art. 1152). Thus the nude owner is responsible for unusual and unforeseen repairs and expenses.112

In light of the above, the default position is that the usufructuary will be responsible for the usual maintenance and must pay the ordinary maintenance expenses while the nude owner is responsible for unusual maintenance and the payment of extraordinary,113 in the sense of

110Filios, Obligations, p. 218; AP 768/1987 Efimeris Ellinon Nomikon (EEN) (1988), p. 308.

111Filios, Obligations, pp. 239, 240.

112Balis, Property, pp. 356–7; Georgiades, Property, vol. 2, p. 61.

113Extraordinary expenses are defined by business usage and must be understood as differing from the expenses related to the usual maintenance of the property provided, in Civil Code, art. 1152 (Karasis, in Georgiades and Stathopoulos, GCC, Collective Analysis, art. 1153, no. 3 (93)).