Germany

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

to avoid disputes over the original condition of the leased property, Civil Code, § 585b provides that the parties to this type of lease must agree on a description of the property at the outset of the lease.

Consequently, B is only allowed to cut plantations if such activity is in accordance with the accepted standards of exploitation of plantations in that area (allowing, for example, the felling of trees every seven years). Whereas plantations of timber are destined to be felled, fruit trees are meant to be exploited by reaping the fruit on a regular basis. Cutting down fruit trees will destroy the substance of the leased property and is thus not permitted. Similar considerations apply with regard to decorative trees. Shrubs can only be cut if they were originally intended to be cut.

Mining is subject to special mining legislation. Any person proposing to conduct mining operations falling within the scope of application of the German Federal Mining Act (Bundesberggesetz) must apply for a licence to mine. The holder of such licence (Bergbauberechtiger) obtains the right to appropriate minerals collected on the land (Aneignungsrecht). The tenant does not have the power to open new quarries, given that such exploitation will go beyond the agricultural destiny of the property (Civil Code, § 590(1)). The tenant may, however, exploit those quarries which were already in operation at the beginning of the lease.

B is not entitled to harvest standing crops after the termination of his/ her right. However, if the lease expires before the end of the harvesting season (Pachtjahr), A must compensate B for the value of standing crops, which, according to accepted standards, have to be harvested by the end of the harvesting season (Civil Code, § 596a(1)), taking into account the usual expenses that B would have made in order to harvest the crops.

The tenant is not entitled to sub-let the property without the consent of the landowner (Civil Code, § 589).

Usufruct is the only real right which can be applied to this question. The usufructuary is entitled to the natural and civil fruits of the property (Civil Code, §§ 1030 and 99 ff.). He/she becomes owner of the natural fruits of the property on collection (Civil Code, § 954). However, the usufructuary must respect the typical (customary) economic destiny of the property and may only exploit it according to the accepted standards of cultivation (Civil Code, §§ 1036(2) and 1039(1)). After termination of his/her right, the usufructuary must return the property without substantial impairment of the substance (Civil Code, § 1055).

The usufructuary is only entitled to cut plantations which are meant to be felled. However, he/she may cut plantations for timber in accordance with the harvesting programme (business plan) agreed upon by the

parties. Each party is entitled to claim at any time that an expert be appointed at a cost shared by both to work out a detailed harvesting programme (Civil Code, § 1038(1)). B may not cut fruit trees, decorative trees or shrubs unless they are dead.

The usufructuary enjoys the fruits of the mines and quarries already in operation at the beginning of the usufruct. He/she is also entitled to open up new quarries as long as this does not substantially alter the economic destiny of the property (Civil Code, § 1037(2)).

The usufructuary may sub-let the property in which case he/she is entitled to the civil fruits (rent) produced by the lease. The usufructuary’s right to sub-let the property includes both ordinary and agricultural lease. The usufructuary does not need to obtain the owner’s consent for sub-letting the property. Alternatively, where the usufruct expires six months before the proceeds of the sub-lease become due, the rent in terms of the sub-lease is divided between the usufructuary and the owner of the property in proportion to the duration of their rights (pro rata temporis) (Civil Code, § 101, no. 2).

Greece

The agricultural tenant is obliged to exploit the land in an orderly manner (Civil Code, art. 619), namely with due care and in conformity with the intended purpose of the land64 and, in particular, to preserve the productivity of the land (Civil Code, art. 623).65 Without the landlord’s consent he is not allowed to change the existing method of exploitation in a way that may substantially influence the exploitation on expiry of the lease (Civil Code, art. 623, para. 2). He/she is obliged to restore the land, livestock and equipment to the condition in which it would have been if during the lease they had been exploited in an orderly fashion (Civil Code, art. 629). From other provisions (Civil Code, arts. 621, 624 and 625), it seems that this default position may be altered by special contractual provisions or by local usage. In the case of a crop-sharing lease where the rent consists of a share in the produce of the land, the landlord shall assume the general management for the exploitation of the leased land and the supervision of all relevant work in accordance with the conditions laid down in the contract or prescribed by local usage (Civil Code, art. 642). The

64Filios, Obligations, p. 327; AP 1225/1979; NoV (1980), p. 703.

65AP 898/1974; NoV (1975), p. 496.

Furthermore, Law 669/1977, art. 3 regulating licences for the exploitation of quarries grants the right to exploit quarries to the owner of the land or the person to whom the owner has assigned his/her right by notarial deed. For such exploitation, a licence granted by a ministerial decision is needed (Law 669/1977, arts. 4 ff.).

In the case of the lease of land for which a licence to extract minerals has been obtained, the tenant would be entitled to operate the mine or quarry. The lease of a mine67 or quarry68 has been characterised by the Greek Courts as belonging to the category of leases of other incomeproducing property. Civil Code, art. 638 provides that the provisions on the lease of agricultural land, with the exception of Civil Code, arts. 632 to 637, are applicable by analogy to these leases. The notion is derived from Civil Code, art. 961, § 1, which stipulates that fruits of property are its organic products as well as everything obtained from the destination (intended purpose) of the property. Consequently, minerals mined are natural fruits, as they are extracted from the mine or quarry in conformity with its destined use.69

On termination of the agricultural lease at the end of the harvest period, the tenant will be entitled to harvest the crops remaining on the land.70 Termination of a lease before the end of the annual harvest period prevents an agricultural tenant from harvesting crops that are still on the land. He/she will, however, be entitled to claim for expenses incurred in the production of the said crops to the extent that such expenses do not exceed the value of the crops (Civil Code, art. 631). Furthermore, upon the expiry of the lease, an agricultural tenant is obliged to leave on the land such quantity of its produce, particularly seeds, hay and fertilisers as is required for an orderly cultivation of the land until the next harvest. To the extent the tenant had not received such quantities of produce at the inception of the lease, the agricultural tenant shall be entitled to claim compensation from the landlord in respect of the items he/she leaves on the land (Civil Code, art. 636).

67AP 165/1964; NoV (1964), p. 610; Georgiadou, in Georgiades and Stathopoulos, GCC, Collective Analysis, art. 638, no. 3 (399).

68AP 1033/1979; NoV (1980), p. 473; AP 816/1973; NoV (1974), p. 325; Patras Court of Appeal 670/1996 Arm. 1997 1121; Nafplio Court of First Instance 12/1987 Arm. 1987 750; Syros Court of First Instance 183/1967; NoV (1968), p. 435; Lamia Court of First Instance 214/1965; NoV (1965), p. 1092; Georgiadou, in Georgiades and Stathopoulos,

GCC, Collective Analysis, art. 638, no. 3 (399).

69Georgiades, Property, vol. 2, p. 116; Georgiadou, in Georgiades and Stathopoulos, GCC, Collective Analysis, art. 961, no. 6.

70Georgiadou, in Georgiades and Stathopoulos, GCC, Collective Analysis, art. 631, no. 1 (393).

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

In an ordinary contract of lease (including the lease of a house), the tenant is entitled, in the absence of contrary agreement,71 to assign his/ her right of use and in particular to sub-let the property. In such a case, the tenant will be liable to the landlord for any damage attributable to the fault of the sub-tenant, even if the landlord has consented to the sublease (Civil Code, art. 593).72 In the case of an agricultural lease, the default position is that in the absence of a contrary agreement or local custom, an agricultural tenant (tenant-farmer) is not entitled to assign the use of the leased land and particularly to sub-lease it, without the consent of the landlord (Civil Code, art. 624).73 The rationale for this distinction is that the agricultural landlord entrusted the land to a particular tenant on account of the latter’s known expertise to cultivate the property in a proper and orderly manner.74 If the tenant-farmer subleases the farm without the consent of the landlord, the landlord has the right to terminate the contract immediately and to sue for damages for breach of contract (Civil Code, art. 620 applying Civil Code, art. 594).75

The terms of the sub-lease may differ from the terms of the initial lease. It is therefore likely that the duration of the sub-lease may extend beyond the duration of the lease.76 In such a case, however, the sub-tenant’s right to use the property is not enforceable against the landlord, who by virtue of Civil Code, art. 599, § 2 may claim the property from the sub-tenant upon expiry of the lease.77 The contractual relationship between the sublandlord and the sub-tenant would nevertheless still be valid and the rules of the Greek Civil Code on lease would be applicable. If the subtenant is therefore deprived of the use of the property by the landlord, his/her obligation towards the sub-landlord to pay the rent will no longer be sustained (Civil Code, arts. 583 and 576).78

71Note that, as a rule, the standard forms of leases, prepared by the homeowners’ association and usually used in everyday transactions, include terms preventing the tenant from assigning the use of the leased land, in particular through a sub-lease, without the consent of the landlord.

72Athens Court of Appeal 9825/1979; NoV (1980), p. 1182.

73AP 898/1974; NoV (1975), p. 496.

74Georgiadou, in Georgiades and Stathopoulos, GCC, Collective Analysis, art. 624, no. 2 (388).

75Ibid. art. 624, no. 3 (388).

76Rapsomanikis, in Georgiades and Stathopoulos, GCC, Collective Analysis, art. 599, no. 8 (327); Dacoronia, Sub-lease, 89 n. 47 and 42 n. 89.

77Dacoronia, Sub-lease, 89–90; Athens Court of Appeal 7760/1985; EllDni (1985), p. 1384.

78Dacoronia, Sub-lease, 86–7.

In the case of usufruct, the usufructuary is entitled to use and collect the fruits of the property without impairing its substance (Civil Code, art. 1142). In exercising his/her right, the usufructuary must preserve the intended economic purpose of the property and exploit the property with care and in accordance with the rules of orderly exploitation79 without introducing substantial changes to the property (Civil Code, art. 1148). In the case of the usufruct of a plantation, a mine or a quarry, either the usufructuary or the nude owner has the right to require that the land must be exploited according to a plan prepared at a cost shared by them (Civil Code, art. 1149). Any one of the parties may request the court to appoint an expert to work out a detailed harvesting programme at a cost shared by both parties.80

In accordance with the above principles, the usufructuary will be entitled to cut down the timber trees as they are considered fruits of the land if they are meant to be felled at regular intervals. If exploited in accordance with a management plan, the exploitation must follow the guidelines set out in that plan.81 Since the fruits must be collected without impairment of the substance or economic purpose of the property and according to the rules of orderly exploitation, the usufructuary will not be able to cut down fruit trees, decorative trees or shrubs unless it represents an orderly exploitation. The removal of dead branches and the replacement of dead trees or shrubs in order to maintain the economic purpose of the property will probably fall into this category.

The usufructuary will be entitled to continue mining operations in accordance with an exploitation plan if required by one of the parties. The usufructuary will, however, not be allowed to open new quarries or mines as this would change the economic purpose of the land, will not be in accordance with its orderly exploitation and against the prohibition on introducing substantial changes to the property.

The usufructuary of agricultural property is not entitled to collect standing crops which are not harvested on termination of the usufruct. He/she may, however, claim reimbursement of the expenses incurred in connection with the production of the crop to the extent that such reimbursement does not exceed the value of the crop (Civil Code, art.

79Georgiades, Property, vol. 2, p. 63.

80Karasis, in Georgiades and Stathopoulos, GCC, Collective Analysis, art. 1149, no. 2 (87).

81Balis, Property, p. 354; Karasis, in Georgiades and Stathopoulos, GCC, Collective Analysis, art. 1149, no. 3 (88). If the usufructuary does not follow the guidelines of the plan, the nude owner can file an action forcing him to do so and sue for damages, in appropriate cases.