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pertaining to usufruct should also be applicable to the holder of a building lease.122

The Netherlands

The landlord of residential property has the obligation to do all major repairs to the property, unless it will be unreasonable to require this from him/her (Civil Code, art. 7:206). Minor repairs, which a handy tenant can reasonably do himself, must be carried out and paid for by the tenant (Civil Code, arts. 7:206, para. 2 and 7:217).

The tenant will not be responsible for any major repairs. The rules on repairs are mandatory (Civil Code, arts. 7:206, para. 3 and 7:242). The new Civil Code, art. 7:240 foresees the possibility of compiling a list of minor repairs in an Order in Council, which will be mandatory and from which the landlord will not be able to deviate.123

Law on Rural Leases (Pachtwet), art. 26, para. 1 reads: ‘During the lease the landlord has the obligation to do all necessary repairs on the leased property, excluding minor and daily repairs which, according to local custom, have to be borne by the tenant.’124

In the case of usufruct, ordinary repairs must be carried out by the usufructuary (Civil Code, art. 3:220).125 The repainting of the building where the paint flaked off, probably falls within the scope of ordinary repairs. In the case of extraordinary repairs, the usufructuary must notify the owner and allow him/her a reasonable period to carry out the repairs (Civil Code, art. 3:220). The owner is not, however, obliged to do so. If the owner does not repair the defects after being notified, the usufructuary may do so at the expense of the landlord. If the roof is damaged in a storm, the repairs will probably be regarded as extraordinary.126 In the cases where the central heating system becomes defective and the fences on the farm become dilapidated, the position is unclear. If the extent of the defects requires the entire central heating system or all the fences to be replaced, it will more than likely be considered extraordinary repairs (this will definitely be the case where the heating system

122See Caterina, I diritti, pp. 145 ff.

123The list has been laid down in the Order in Council of 8 Apr. 2003, Stb (2003), p. 168, Decision: Small Repairs.

124In future this will be included in Civil Code, arts. 7:339 and 7:351.

125Asser, Mijnssen, van Dam and van Velten, ‘Zakelijke Rechten’, no. 279; Pitlo, ‘Goederenrecht’, no. 696.

126See, in general Pitlo, ‘Goederenrecht’, no. 696.

has become obsolescent). However, if defects require only a small repair, it will probably fall within the scope of ordinary repairs.

In the case of a hereditary land lease (emphyteusis), the holder is allowed to develop someone else’s property (Civil Code, art. 5:85). Land leases are normally granted by public authorities which include the terms on which the lease is granted in a constitutive agreement registered in the Land Register.127 The default rule is that the holder of the land lease is responsible for ordinary repairs and the landlord for extraordinary repairs (Civil Code, art. 5:96), but this can be changed in the constitutive agreement (Civil Code, art. 5:96 III). In the case of an extraordinary repair, the holder must notify the land owner of the need and allow the owner to do the repairs. The owner is not obliged to do so, nor is the holder of the land lease entitled to any compensation for damages incurred because of the defect (Civil Code, art. 5: 96 I).

The distinction between ordinary and extraordinary repairs depends on the circumstances of the case.128 Thus it would really depend on the circumstances of the case whether the cases where the central heating system becomes defective or the fences on the farm become dilapidated would be considered ordinary or extraordinary repairs and thus the responsibility of the holder of the lease or the landowner. The roof damaged in a storm will call for extraordinary repairs, whereas the repainting of the building due to the flaking off of the paint and the defective heating system will need ordinary repairs. If an omission to repair results in further damages, this must be borne by the party who did not carry out the original repairs as in the case where the omission to repaint by the holder of the land lease caused serious damage to the walls. 129

In the case of a hereditary building lease (superÞcies), B will become the owner of the construction on the land (Civil Code, art. 5:101). This implies that B has all the obligations and rights of an owner. It also means that it is for B to decide whether he/she will repair, renew or replace the object.130

Poland

Under a lease, the landlord is under a general obligation to maintain the property in a condition fit for the purpose for which it is let. However,

127Asser, Mijnssen, van Dam and van Velten, ‘Zakelijke Rechten’, no. 216; Pitlo, ‘Goederenrecht’, no. 647.

128Asser, Mijnssen, van Dam and van Velten, ‘Zakelijke Rechten’, no. 235.

129Ibid.; Pitlo, ‘Goederenrecht’, no. 648. 130 Pitlo, ‘Goederenrecht’, no. 672.

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minor repairs connected with the ordinary enjoyment of the property are the responsibility of the tenant (Civil Code, art. 662, § 1). The landlord is therefore liable for the repair of all defects that interfere with the proper use and enjoyment of the property. The landlord has no obligation to recreate the original state of the property where it has been damaged owing to circumstances for which he/she is not liable (Civil Code, art. 662, § 3). Repairing the central heating system will be the duty of the landlord, but he/she will not be responsible for the replacement of an obsolescent heating system. The landlord will also not be required to repair the roof damaged in a storm, even if this causes the property to be unfit for the purpose for which it is let. Painting the building will be the landlord’s duty. If the tenant caused damage, the landlord will be obliged to repair the property but can seek redress from the tenant based on delictual liability.

In the case of residential leases, the Law on Protection of Tenants (POT) applies, and the above default rules change. The landlord is obliged to ensure the proper functioning of gas, water, heating, sewage, electric installations and lifts (elevators). This duty to maintain the property in a state fit for its purpose includes maintenance and cleaning of the common parts of the building. The landlord is obliged to restore the property to its original condition, even if the damage is due to circumstances beyond his/her control (POT, art. 6a). POT, art. 6b, § 2 places detailed obligations on the tenant, including the maintenance and replacement of damaged floor coverings, worktops, kitchen appliances, washbasins, sinks and faucets; the decoration of ceilings and inner walls; and the maintenance of the central heating system, fitted wardrobes and furniture.

In the case of an income-producing lease (fruendi leases), the tenant is obliged to carry out any repairs necessary to maintain the property in a proper condition (Civil Code, art. 696). This provision is understood to refer to repairs needed in the normal course of using the property, even if the repairs are not minor. They may not, however, amount to improvements. Therefore, repairing the fences or repainting the outer walls will be the duty of the tenant. The same will be true for minor defects in the central heating system, but if it becomes obsolescent without being defective, replacement would be viewed as an improvement. It is often the case that the parties fully accept these default rules. More-detailed contractual clauses will normally concern improvements. The general tendency is to place as much as possible of the obligations relating to repairs on the tenant.

Loss resulting from non-timeous painting can be the basis for a contractual or even a delictual claim for damages. The landlord is not responsible for repairs necessitated by damage caused by the tenant. The landlord can demand that the tenant repair the damage and if he/ she does not respond sue the tenant in delict for damages. If the tenant causes damage through his/her inappropriate use of the property, the landlord is entitled to terminate the lease without observing the applicable notice periods (Civil Code, art. 667 and POT 11, § 2).

Under a usufruct, the usufructuary is obliged to use the property in a manner consistent with proper management (Civil Code, art. 256) and to carry out repairs connected with the ordinary use of the property. He/ she must inform the owner of the necessity to carry out other repairs and improvements and allow him/her to do so (Civil Code, art. 260). The rationale is that since the usufructuary is entitled to use the property and reap its fruits without changing the substance of the property or its use, he will only be responsible for ordinary maintenance. The repair of the central heating system will probably fall under ordinary repairs for which the usufructuary is responsible, but not the replacement of an obsolescent heating system. The same applies to minor repairs of the roof or repairing the fences. Painting the outside walls can be the responsibility of the usufructuary if the usufruct was constituted for a substantial term.

If the usufructuary caused the damage, he/she will be responsible for the cost of repairs. Parties may change these default rules. The case of loss caused by non-timeous painting of the building will be addressed by general civil law rules concerning the performance of contracts and the right to demand damages when loss has been suffered through the fault of another.

The holder of a hereditary land lease (perpetual usufruct) is responsible for all the repairs mentioned as he/she technically owns the buildings and his/her other rights are similar to those of an owner. There is no possibility of shifting these obligations.

Portugal

Portuguese law on the maintenance of property subject to a lease is governed by provisions in the Civil Code as well as by Decree-Law 294/ 2009 on Agricultural Leases. Under the Portuguese Civil Code, the landlord’s main obligations are to transfer the property to the tenant and to ensure that the property can be used in accordance with the purpose of the contract (Civil Code, art. 1031). The landlord must tolerate such use

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and is not allowed to act in a manner that will prevent or restrict it. If a building is leased, it must be delivered to the tenant in a good condition, unless the contrary is stipulated in the contract. There is a presumption in favour of the landlord that the building was in a good condition at the time of delivery in the absence of a document attached to the contract describing the condition of the building at the date of transfer (Civil Code, art. 1043 no. 2).

The tenant’s duties include a duty to allow the landlord to inspect the building, to take care of the property and to exercise his/her rights with due diligence. The tenant must also allow the landlord to execute urgent repairs to the building (Civil Code, art. 1038). As long as the tenant exploits the property with the care of a bonus paterfamilias (Civil Code, art. 1043) and in accordance with the purpose of the contract, he/she is not responsible for any damage caused to the property and need not repair, replace or renew it before the property is returned to the landlord.

In the case of residential or urban leases, the tenant is entitled to make alterations to the building to suit his/her comfort or convenience. However, in the absence of a stipulation to the contrary, these alterations will have to be reversed on termination of the lease so that the building can be returned in its previous condition (Civil Code, art. 1072).

The landlord is responsible for both ordinary conservation (repair and cleaning, maintenance to keep the building fit for the purpose of the contract and work required by public authorities) and extraordinary conservation of the property (repair of defects in the building, and maintenance required as a result of damage caused by force majeur).

It is important to note that the tenant is not allowed to make alterations to the building except where authorised by the landlord or where that possibility is contemplated in the contract (Civil Code, art. 1074). The tenant is obliged (and consequently responsible for the repairs necessary) to maintain the dwelling in the same condition he/she received it, with allowance being made for fair wear and tear (Civil Code, art. 1043, no. 1 and 1044). The tenant is allowed to make urgent repairs where the landlord does not act within a reasonable time after being notified (Civil Code, art. 1036) and will be entitled to compensation. The tenant is also responsible for repairing damage caused by his/ her negligence or the negligence of persons for whom he/she is responsible (Civil Code, art. 1043, a contrario).

The rules expounded above are also the default legal regime for urban leases used for commercial, industrial, professional and other purposes.

However, the parties may agree in a written deed that ordinary and extraordinary repairs as well as improvements to the property (benfeitorias) are the responsibility of the tenant (Civil Code, art. 1111).

In the case of urban residential leases, a central heating system constitutes a central part of the residential premises, and if the defect can be traced back to an inherent defect in the system, the landlord (A) will be liable under the obligation to deliver the building in a condition fit to be exploited in accordance with the purpose of the lease. A would thus be obliged to rectify the defect. Civil Code, art. 1030 expressly saddles the landlord with the obligation to carry out repairs necessary to maintain the building in a state fit for the residential purpose for which it is leased.

The position is different if the central heating system becomes obsolescent

(without being defective). If its replacement is classified as a conservation measure, it will fall under the responsibility of the landlord, but if, which is more likely, it is classified as an improvement, the landlord would have to carry out the improvement if agreed to by the parties in a written document. With regard to the roof being damaged in a storm, it is the duty of the landlord to keep the building fit for the purpose for which it was leased and he/she will be obliged to repair damages caused by force majeur, such as a storm. The repairs needed when the paint on the building ßakes off will be classified as ordinary repairs necessary for the conservation of the building and will be the responsibility of the landlord.

Since the Law on Agricultural Leases does not contain specific provisions on the responsibility for repairs, the general legal regime on leases applies which places the responsibility of the landlord. If the fences on the farm become dilapidated, it may be considered an ordinary repair for which the landlord is responsible. Similar to the legal regime for residential leases, the tenant is obliged (and consequently responsible for the repairs necessary) to maintain the dwelling in the same condition he/she received it, with allowance being made for fair wear and tear (Civil Code, art. 1043, nos. 1 and 1044). It will be the responsibility of the tenant to repair the fences if dilapidation was due to his/her fault. The tenant is also allowed to make urgent repairs if the landlord does not act within a reasonable time after being notified (Civil Code, art. 1036) and reclaim the costs. Under an agricultural lease, both the tenant and the landlord are allowed to make improvements to the property (DecreeLaw 294/2009, art. 21).

Since the landlord is responsible for repainting the building, he will be liable if on account of his/her omission the wall is seriously damaged. However, there is an obligation on the tenant to warn the landlord if the

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building is in need of urgent repair. An omission on the part of the tenant to warn the landlord timeously would shift the liability to the former.

The usufructuary is under an obligation to exploit the property like a bonus paterfamilias in accordance with its economic purpose (Civil Code, art. 1446) and without impairing the substance of the property (salva rerum substantia). In general, the usufructuary is not liable for ordinary wear and tear,131 except where it is caused through his/her fault (Civil Code, art. 1452). The usufructuary is obliged to manage the property and to maintain it in a proper state of repair. He/she is responsible for ordinary repairs, namely those costing less than two-thirds of the annual net rent that can be collected from such property (Civil Code, art. 1472, nos. 1 and 2).132 By contrast, any extraordinary repairs are the responsibility of the nude owner and the usufructuary only has a duty to warn the owner about these. However, if the need for repairs can be traced to inefficient management on the part of the usufructuary, he/ she will be responsible (Civil Code, art. 1473, no. 2). If the owner refuses or postpones extraordinary repairs, the usufructuary can carry out the repairs and reclaim the cost from the nude owner. These expenses have to be reimbursed without it being necessary to wait for the termination of the usufruct (Civil Code, art. 1473, no. 2).

If the central heating becomes defective, the repairs needed are classified as ordinary repairs and the usufructuary will be obliged to repair it in order to preserve the property and keep it in a state of good repair (Civil Code, art. 1472). If the central heating becomes obsolescent, its replacement by a modern heating system will be considered an extraordinary repair and the cost of repair will have to be borne by the nude owner (Civil Code, art. 1473). If the replacement is classified as an improvement rather than maintenance, there is no obligation upon the owner to replace the central heating. If the usufructuary replaces the heating system, it will be classified as a useful improvement which would

form the basis for a claim based on unjustified enrichment. If the roof of the house is damaged133 in a storm, the repair may amount to an act

131If the usufructuary does not return the property in a proper condition, the owner can claim for damages: Court of Appeal of Porto of 30.03.2003 [Process 0030331], available at www.dgsi.pt.

132Decision of the Supreme Court of Justice of 02.02.1991 [Process 079975], available at www.dgsi.pt.

133The Court of Appeal of Porto of 13.12.2001 [Process 0131488], available at www.dgsi.pt, decided that if the roof of a house is damaged, the owner must bear the expense.