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enjoyment that others have of it’ (Civil Code, art. 820), the usufructuary is entitled to the proceeds of the sub-lease.

With regard to standing crops, if the owner and the usufructuary succeed each other in the enjoyment of the property before the end of the harvesting season (agricultural farming year) or in the course of a longer farming cycle, the crops are divided between them in proportion to the duration of their respective rights during that period (Civil Code, art. 984). Since civil fruits are acquired on a daily basis (Civil Code, art. 821), the same principle applies to them.

The holder of a right of use can collect the fruits to the extent necessary to meet his/her needs and those of his/her family. According to the prevailing opinion, the fruits must be destined for direct consumption,89 with the exclusion of any commercial exploitation. While in principle the usuary can cut timber trees and even exploit a quarry (directly utilising the stones), this type of exploitation has very little practical relevance. Because of its highly personal nature, the rights of use or habitation cannot be leased (Civil Code, art. 1024).

The holder of a hereditary building lease (proprietario superÞciario) may sub-lease the building. Lease contracts concluded by the proprietario superÞciario cannot last beyond the year in which the building lease expires (Civil Code, art. 954).

The Netherlands

It must be noted that an agricultural lease must aim at farming the land professionally (Civil Code, art. 7:311 read with art. 7:312). Moreover, an agricultural lease cannot be concluded in respect of a forest (Civil Code, art. 7:312). Therefore, cutting plantations for timber does not fall within the scope of an agricultural lease. However, cultivating fruit trees does fall within the definition of an agricultural lease.

The agricultural tenant is expected to behave like a ‘good’ lessee (Civil Code, art. 7:347). This implies that the tenant is entitled to cut fruit trees, decorative trees and shrubs in so far as he/she is required to do so as a ‘good’ lessee.

Moreover, the tenant is only entitled to change the purpose of the leased object with the written permission of the landlord (Civil Code, art. 7:348). In so far as it concerns minor changes which can easily be undone at the end of the agriculture lease, the tenant may perform

89 See e.g. Pugliese, Usufrutto, pp. 809–10.

them without permission in writing. Therefore the question whether the tenant may cut fruit trees, decorative trees and shrubs depends on whether it can be regarded as a duty following from Civil Code, art. 7:347 and as to whether it is regarded as a change to the purpose of either the contract or the leased object.

As stated above, an agricultural lease is aimed at farming the land professionally (Civil Code, art. 7:311). Mining minerals and quarrying stones do not fit this purpose, which is provided for in Civil Code, art. 7:312. Consequently, an agricultural lease cannot be concluded if the mining and quarrying of stones form the core of the contract.90

In the case of the termination of an agricultural lease, Civil Code, art. 7:360 provides that the new tenant must allow the previous tenant to harvest the crops sown and cultivated by the previous tenant.

It also follows from Civil Code, art. 7:347 that the tenant is not entitled to sub-let the property, unless the agricultural landlord grants permission in writing (Civil Code, art. 7:355).91 In the case of a sub-lease, the tenant is entitled to the proceeds.

A usufruct entitles B to use the property and to enjoy the fruits of someone else’s immovable property (Civil Code, art. 3:201). The usufructuary may use or consume the fruits in accordance with the rules stipulated in the constitutive deed (Civil Code, art. 3:207). In the absence of special arrangements, the use and enjoyment of the fruits must be in accordance with the nature of the property and local customs. In relation to the owner, the usufructuary is obliged to exercise the care of a prudent person (Civil Code, art. 3:207).

The usufructuary becomes the owner of all the natural fruits which can be separated during the term of the usufruct (Civil Code, art. 3:216). The constitutive deed can stipulate which goods are to be regarded as fruits. Thus the constitutive deed and the character of the property subject to the usufruct determine the natural fruits that can be collected by the usufructuary. Because the trees of a plantation are destined to be cut for timber, the usufructuary will be entitled to cut them. This is, however, not the case with fruit trees in an orchard and ornamental trees.

Where a usufruct is granted over an existing mine or quarry it seems apparent that good maintenance of the usufruct will involve the mining of minerals or the removal of stones. The usufructuary will, however, not be entitled to open new mines or quarries without the consent of the nude owner.

90 Asser and Snijders, Pacht 7-III, nos. 35 ff. 91 Ibid. no. 134.

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With regard to the entitlement of a usufructuary to standing crops on termination of the usufruct, the position is that the usufructuary loses his/her entitlement to the crops at the moment of termination and the nude owner becomes the owner of the standing crops. The latter will probably have to reimburse the usufructuary for his/her expenses in producing the crop.

If the constitutive deed does not provide differently, the usufructuary is entitled to lease the property subject to the usufruct to someone else (Civil Code, art. 3:217 I). However, if the property subject to the usufruct is not leased at the inception of the usufruct, the usufructuary is not entitled to lease the property without the consent of the nude owner or authorisation of the court of first instance (Kantonrechter) unless such authority is expressly granted in the constitutive deed (Civil Code, art. 3:217 II). On termination of the usufruct, the nude owner is obliged to maintain the lease, subject to certain conditions (Civil Code, art. 3:217 III).92 There is no literature with respect to the situation where the usufruct expires six months before the rent under an annual lease is payable.

Under a hereditary land lease (erfpacht, emphyteusis) the holder is entitled to remove all trees and plants that he/she has planted as long as the property is returned at the end of the lease in the same condition as on inception (Civil Code, art. 5:89 III). The holder may thus remove the fruit or ornamental trees as well as the plantation that he/she has planted. Since he/she is not allowed to change the intended purpose of the land without the consent of the owner of the land (Civil Code, art. 5:89 II), he/she will not be entitled to cut existing fruit trees or ornamental trees without the permission of the nude owner, but may collect wood from plantations that are meant to be felled at the appropriate time.

If the holder of a hereditary land lease is granted the right to mine or to quarry stones on the land in the constitutive deed, prudent maintenance of the land will involve the continuation of the mining and quarrying operations. However, if such a right is not expressly granted in the constitutive deed, mining and quarrying will be against the intended purpose of the property concerned (Civil Code, art. 5:89 II). In the literature, mining is given as an example of a forbidden activity.93

After termination of the hereditary land lease (emphyteusis), the holder is entitled to compensation for crops remaining on the land on termination

92 Pitlo, ‘Goederenrecht’, no. 692. 93 Ibid. no. 647.

if the crops were sown by him or bought from the reversionary owner (Civil Code, art. 5:99 I). This default rule can be altered by the parties in the constitutive deed. According to Civil Code, art. 5:99 II, paras. (b), (c) and (d), the constitutive deed may provide that B will not be entitled to compensation where he/she has not paid for the seeds, where the land lease is terminated by B, or where B was not obliged to plant the crops and was entitled to remove them upon termination of the hereditary land lease.

If B sub-lets the farm, he/she is entitled to the rent, unless the sub-lease was forbidden in the constitutive deed (Civil Code, art. 5:94 I). After the termination of the principal limited interest, B is not entitled to the proceeds. There is no information in the literature with respect to the situation where the hereditary land lease terminates six months before the rent under an annual sub-lease is payable.

Under a hereditary building lease (superÞcies), B becomes the temporary owner of the buildings and plants on the surface of the land subject to the hereditary building right. As owner, B will be entitled to cut the plantations and remove fruit or decorative trees unless the constitutive deed limits his/her entitlements to these plants (Civil Code 5:102).94 Since the mining of minerals and the quarrying of stones concern operations beneath the surface of the land, such operations will not be allowed, especially if they are expressly forbidden in the constitutive deed (Civil Code, art. 5:102).95 Upon termination of the hereditary building lease, the ownership of the land and the crops remaining on the land revert to the landlord. In certain circumstances, the holder will be entitled to compensation for expenses in producing the crops (Civil Code, arts. 5:105 III and 5:99). The holder as temporary owner of the house on the property is entitled to sub-let the house and to collect the rent. On termination of the building lease, the reversionary owner will be entitled to the outstanding rent. There is no literature on a possible division of the rent if the building lease is terminated six months before an annual rent under the sub-lease becomes payable.

Poland

Under an income-producing lease (fruendi lease), B is entitled to the fruits of the farm (natural and civil) but not to constituent parts of the land. B can collect fruits, but not cut the trees, unless the farm is used as a nursery for

94 Ibid. no. 672. 95 Ibid.