improvements and can therefore exploit them for his/her own benefit if not restricted in the constitutive deed. The holder must maintain the plantations and trees which were on the land when he/she entered it. In some countries,34 the holder is entitled to lease the land to a third person if it is not prohibited in the grant of the superÞcies. The tenant’s right will be extinguished on expiry of the superÞcies.

If a hereditary land lease (emphyteusis) is granted by the state or local authority, Belgian law entitles the holder to exploit the property by carrying out standard operations in conformity with the purpose of the property and to reap its normal economic proceeds. The holder (emphyteutor) has at least the same rights as the usufructuary concerning plantations, fruit trees, ornamental trees or shrubs. He/she is further entitled to excavate stone, coal, turf, clay or similar substances from the soil if the landowner had already done so prior to the grant of the hereditary land lease. However, he/she is not allowed to open new mines or quarries. Standing crops left on the expiry of the land lease will belong to the owner on the model of usufruct. While the holder is in principle allowed to rent out the property, the expiry of the hereditary land lease will extinguish the lease also in Belgium and France.

Austria

In the case of an income-producing lease, the tenant is entitled to use the leased object and to enjoy its fruits. In principle, he/she is obliged to take due care when doing so and must not change the substance of the property. The exact extent of his/her rights depends on the contract, its purpose and local customs.35 Hence, it is hardly possible to give an exact solution to the question of cutting plantations, trees and shrubs without considering the circumstances, the nature of the property and the contract concerned. As a general rule, the cutting of plantations and trees is only allowed if it is in accordance with local customs and not to an extent which will result in a substantial change of the property. It is probable that, generally, the tenant will have to prove why he is entitled to do so.

Mining activities are governed by the Law on Minerals (Mineralrohstoffgesetz BGBl I 38/1999, last amendment 84/2006). The

34France, Spain, Belgium and Italy.

35Wu¨ rth, in Rummel, Kommentar, § 1098, para. 2; Iro, in Koziol, Bydlinski and Bollenberger, Kommentar, § 1098, para. 1; Binder, in Schwimann, Praxiskommentar, vol. 5, § 1096, para. 5.

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

requirements for prospecting and acquisition of minerals depend on the kind of minerals concerned. The Law on Minerals distinguishes between three types of minerals, namely those which can be acquired by anyone (‘free minerals’ (s. 3)), those which belong to the State (‘state owned minerals’ (s. 4)) and those which belong to the respective landowners (s. 5). In any case, prospecting, mining and acquisition of minerals require certain licences and/or approvals by the competent authorities. Parties to the respective public law proceedings are the applicant, the landowner, sometimes also neighbours, federal states and municipalities (ss. 30, 37, 76, 81 and 116).36 If the tenant wants to continue existing mining operations he/she not only needs to conclude a contract with the landowner but also needs a mining licence recognised by the competent authorities (s 52).

Upon termination of the lease, the tenant is obliged to return the leased property in a condition conforming to the particular season concerned (Civil Code, § 1109). There is no regulation as to the distribution of the fruits if the agricultural lease expires before the fruits are harvested. It seems to be appropriate to apply Civil Code, § 519, which applies to usufruct by analogy. Accordingly, any fruits not yet harvested on termination of the income-producing lease becomes the property of the landowner. However, the landowner has to compensate the tenant for any expenses incurred in producing these fruits. Civil fruits (rents) of any sub-lease, on the other hand, must be distributed proportionally.37

According to Civil Code, § 1098, the tenant is entitled to sub-lease the land, provided that the sub-lease is neither to the disadvantage of the landlord nor expressly prohibited in the contract.

Under a usufruct, the usufructuary is entitled to use the land without any restraints as long as he/she does not interfere with the substance of the property (Civil Code, § 509). Hence, in principle, the usufructuary can cut trees of a plantation, but not to the extent that this results in the clearing of the plantation (Kahlschlag).38 Proceeds from overexploitation must be returned to the owner.39 There is neither express statutory provision nor case law which covers decorative trees, fruit trees or shrubs. However, from the general duty to maintain the substance and not to

36Randl, Neuordnung des Bergrechts, p. 248.

37Binder draws a similar conclusion in Schwimann, Praxiskommentar, vol. 5, § 1096, para. 21. For details as to sub-leases, see Case 9.

38Kletecka, in Koziol and Welser, Bu¬rgerliches Recht, vol. 1, p. 425.

39Hofmann, in Rummel, Kommentar, § 511, para. 1.

change the type of husbandry, it follows that the usufructuary is allowed to cut them only if this is necessary for good husbandry.

In principle, minerals are deemed to be fruits. However, as mentioned above, some minerals are free (and can thus be taken by anybody) and some are considered state-owned. If the usufructuary wants to continue existing mining operations he/she not only needs to conclude a contract with the landowner but also requires a mining licence recognised by the competent authorities (Law on Minerals, s. 52).

After termination of the usufruct, the landowner has a proprietary right to get back his/her land in a condition conforming to the time of return (Civil Code, § 518). The distribution of the then existing fruits is subject to Civil Code, § 519. Consequently, the fruits not yet severed on return of the property belong to the landowner. However, the landowner has to compensate the usufructuary for all expenses incurred in producing these fruits to the extent of the value of the fruits. Civil fruits (rent) must be distributed proportionally.40 Such rent may arise from leases which were taken over by the usufructuary from the landowner or created by the usufructuary himself.41

Belgium

The Law on Agricultural Lease applies to the lease of a farm. The agricultural tenant must exploit the property as a bonus paterfamilias according to the intended purpose determined by the provisions of the lease and the surrounding circumstances. The tenant may reap the natural and civil fruits. Upon termination of the lease, the tenant must return the property in the condition in which it was at the inception of the lease, or at least in the condition in which it will be after orderly exploitation. In general, the tenant is not entitled to encroach on the substance or the income-producing capacity of the property. Concrete questions regarding specific use and enjoyment by the tenant are determined by the contract: did the parties explicitly or implicitly allow such use?

The guidelines with regard to the cutting of plantations, fruit trees, decorative trees and shrubs are whether such acts are considered reasonable use (as a bonus paterfamilias) in accordance with the interpretation of the provisions of the lease contract. In principle, the tenant will not be entitled to cut plantations for timber, cut fruit trees, decorative trees or

40Ibid., § 519, para. 1.

41For details regarding leases created by the usufructuary, see Case 9.

The rights of the usufructuary with regard to plantations, fruit trees, decorative trees and shrubs are regulated in detail in Civil Code, arts. 590 to 594. In general, a usufructuary is only entitled to remove these trees in accordance with local customs and practices. Consequently, the usufructuary is entitled to clear shrubs (undergrowth) and clusters of bushes from the property, and remove trees for timber from plantations (Civil Code, art. 590–1). The time of removal and the number of trees removed must, however, accord with commercial custom and the practice of previous owners. Decorative and fruit trees must in principle be left untouched unless they were uprooted or damaged by accident. These trees and even undamaged trees may be cut and used to carry out repairs on the property for which the usufructuary is responsible. In such a case the usufructuary is obliged to replace the trees (Civil Code, arts. 592 and 594). In addition, the usufructuary may remove trees which are part of a nursery, provided they are replaced in order to maintain the value of the nursery.

The usufructuary may undertake mining operations on the property after he/she has complied with certain public law requirements. B may then continue operating mines and quarries that were operated prior to the inception of the usufruct (Civil Code, art. 598). He/she is not, however, entitled to open new mines or quarries which were not in operation at the inception of the usufruct (Civil Code, art. 598, para. 2).

Standing crops which remain on the soil on termination of the usufruct belong to the nude owner without any obligation on his/her part to reimburse the usufructuary for any cost involved (Civil Code, art. 585). This is based on the principle that allows B to retain the benefit of standing crops on the land on inception of the usufruct.

The usufructuary is entitled to the civil fruits (burgerlijke vruchten) of the property (Civil Code, art. 586). Civil fruits include the proceeds from the lease of farms or houses which is not possible in case of a right of use or habitation. Since these fruits are deemed to be acquired by the usufructuary on a daily basis, they belong to the usufructuary on a pro rata basis in proportion to the duration of the usufruct. Thus, even if the proceeds of the lease become due on an annual basis and the usufruct expires six months before such maturity, the usufructuary will still be entitled to his/her pro rata share of the proceeds, unless the parties have agreed otherwise.

B, the holder of a hereditary land lease, although entitled to the full use of the property, is not entitled to do anything that will diminish the value of the property. In general, B will be entitled to cut trees for timber