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executor is entitled (a) to the rent which fell due at the legal term, even if conventionally paid backhand, and also, (b) by virtue of the Apportionment Act, to the rent for the proportion of the period which he/she survived beyond the term date.

South Africa

If the tenant under a lease exploits the property according to its intended use and uses it as a reasonable person would use his/her own property, he/she may reap the benefits of such exploitation.123 Consequently, the tenant may cut plantations destined to be cut (silva caedua) as long as he/ she does so in good time and skilfully. Fruit trees, decorative trees or shrubs may only be removed if they have perished or if it is in the interest of good husbandry.

Opening mines or quarries on the farm will only be allowed if it is consistent with the intended purpose of the farm and if such activity was carried out in the past. The tenant will therefore be entitled to work existing mines. The right to mine will of course be subject to applicable mining legislation.

If the tenant planted the crop with a reasonable prospect of maturity before termination of the lease, South African jurisprudence allows the tenant after termination of the lease to re-enter and reap the standing crop.124 If the crops were planted without a reasonable expectation of maturity, the tenant is not entitled to reap the crop, but can claim the cost of ‘ploughing, tilling, sowing and seedcorn’ even if he/she acted

without the landlord’s consent,125 probably on the ground of unjustified enrichment.126

In principle, the tenant (B) will be entitled to the proceeds if a further interest is created with regard to the property, for example, if he/she sub-lets the house or the farm, which is normally allowed.127 Since the sub-lease only creates a contractual relationship between the sub-tenant and the tenant,128 the principal landlord will only have a claim for the remaining proportionate share of the rent if he/she assumes both the rights and

123Pothier, Obligations, para. 190; Manley v. Van Niekerk (Pty) Ltd. v. Assegai Safaris and Film Productions (Pty) Ltd. 1977 2 SA 416 (A) 423B-C.

124Latelle v. Crafford (1909) 26 SC 426; Japtha v. MillsÕ Executors 1910 EDL 150. See obiter contra Lessing v. Steyn 1953 4 SA 193 (O) 200–1; Bester v. Van Zyl 1972 4 SA 580 (T).

125Lessing v. Steyn 1953 4 SA 193 (O); Steyn v. Fourie 1956 4 SA 458 (A).

126Kerr, ‘Lease’, para. 209; contra Cooper, Landlord and Tenant, p. 332.

127Kerr, ‘Lease’, para. 197. 128 See Cooper, Landlord and Tenant, pp. 243–5.

obligations of the sub-landlord under the sub-lease on termination of the principal lease.

Under a usufruct, a usufructuary is in principle entitled to the natural and civil fruits of the farm. He/she must, however, exploit the farm like a prudent person (arbitratu boni viri) and in the customary manner. He/ she must also eventually return the property without impairment of its substance.

If plantations are meant to be felled (silva caedua), the usufructuary may cut them at the appropriate time and in accordance with the customs of the locality. He/she may further cut and appropriate wood and undergrowth in the ordinary course of husbandry. He/she may not cut fruit trees, ornamental trees or shrubs unless they have perished. He/she must replace dead trees.129

The Roman idea that all minerals and metals are self-renewing and thus natural fruits susceptible to collection by the usufructuary, was not accepted in Roman-Dutch and South African law. Only minerals that are actually self-renewing, such as salt from salt mines, are regarded as natural fruits which are due to the usufructuary. In respect of non-renewable minerals, the usufructuary is allowed to work existing mines, prospect for minerals and open up new mines in accordance with mining legislation. His/her entitlement to non-renewing minerals, however, is limited to the interest on the proceeds of the minerals, the royalties payable on a mining lease, prospecting moneys and moneys paid on options.130

In principle, a usufructuary only becomes owner of the natural fruits of the farm on collection. Until collection the fruits vest in the nude owner. Consequently, the estate of the usufructuary is only entitled to fruits already collected on expiry of the usufruct. His/her successors-in-title will not be entitled to enter the land and harvest standing crops.

A usufructuary is entitled to the rental flow generated by the lease of the property as the civil fruits of the property.131 Although civil fruits (like rent) becomes the property of the usufructuary as they fall due, they are divided between the former usufructuary (or his/her successors) and the owner of the property in proportion to the duration of the usufruct.132

129Van der Merwe, ‘Servitudes’, paras. 427, 429.

130Master v. African Mines Corporation 1907 TS 925; Van der Merwe et al. Property and Trust Law, s. 714.

131Voet, Commentarius, 7.1.30; Ex parte Marks and Marks 1926 TPD 1.

132Van der Merwe, ‘Servitudes’, para. 426.

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Spain

Neither the Civil Code nor the special Laws contain explicit reference to the tenant’s entitlement to fruits under a lease. However, since the essence of a lease contract is the tenant’s entitlement to use the property, one can include under use the enjoyment of the fruits which are produced during the exploitation of the property. This especially applies in the case of rural leases as the Law on Rural Leases, art. 1.1 defines rural leases as leases which consist in the transfer of the possession of one or more farms, or part thereof, for agricultural, cattleraising or forest exploitation.

When the land is leased for agricultural or forestry exploitation, the tenant will be entitled to cut plantations for timber periodically. He/she will also be entitled to cut fruit and decorative trees should he/she decide to plant something else, as the Law on Rural Leases, art. 8.1 allows him/her to decide which kind of crops he/she is going to grow, as long as he/she returns the land in the same condition that he/she received it. Where the system of exploitation involves a change of intended purpose (for example, turning an orchard of fruit trees into a vegetable garden) or extraordinary improvements, express agreement between the parties is required (art. 8.2).

Under Spanish law, mines belong to the State (Law on Mines, art. 2.1).133 This article stipulates that all kinds of geological deposits are in the public domain which the State can exploit itself or grant the right of exploitation to another person by public concession under the Law on Mines. The tenant will not be allowed to open mines, or to continue mineral operations, as leases subject to the Law on Rural Leases can only give the tenant the right to enjoy the land through agricultural use, cattle-raising or forest exploitation.134 Where someone has obtained the public concession to open or to exploit a mine, this right can also be leased.

The tenant is obliged to return the entire property on expiration of the contract of lease unless otherwise agreed (Law on Rural Leases, art. 12.2). Any crops remaining upon termination of the lease will belong to the owner (landlord) as no special rules exist in the Law on Rural Leases, and Civil Code, art. 451–2 will be applicable in such a situation. The tenant is, in contrast to the holders of limited real rights, not entitled to any reimbursement (Civil Code, art. 480).

133Law 22/1973 of 21 July.

134Law on Rural Leases, art. 6 d 5 stipulates that a lease which does not envisage

an agricultural, cattle-raising or forestry exploitation will not be subject to such law.

The tenant is entitled to sub-let the land if this was contemplated in the lease contract. The object of the sub-lease must concern the lease of the entire property for the remaining term of the principal lease (so that the sub-lease expires simultaneously with the principal lease), and the rent must not exceed the rent payable under the principal lease (Law on Rural Leases, art. 23). The landlord’s express consent will further be necessary to sub-let the property (art. 23, para. 2). If the lease contract is not subject to the Law on Rural Leases, Civil Code, art. 1550 allows the tenant to sublet the whole or part of the property if it was not expressly forbidden in the principal contract. In the case of a residential lease, the tenant may cede the contract or sub-let part of the premises (not the whole house) with the written consent of the landlord (Law on Urban Leases, art. 8).

Under a usufruct, the usufructuary is not only entitled to use the property, but also to enjoy its fruits. The usufructuary is entitled to all kinds of fruits (natural, industrial and civil) (Civil Code, art. 471). With regard to pending fruits, the Civil Code establishes two regimes, depending on the kind of fruits. If the fruits are natural or industrial, pending fruits at the beginning of the usufruct belong to the usufructuary, but pending fruits at the end of the usufruct belong to the owner (Civil Code, art. 472). The usufructuary does not have to pay for the pending fruits that he acquires at the inception of the usufruct, but the owner is obliged to reimburse the expenses incurred by the usufructuary for the pending natural fruits which he/she acquires on expiry of the usufruct. By contrast, civil fruits are acquired by the usufructuary proportionately to the duration of the usufruct (Civil Code, art. 474).

The Civil Code contains some special rules for trees, bushes or shrubs on the property subject to the usufruct. Authors distinguish between a usufruct of trees or bushes (usufructo de a«rboles o arbustos), a usufruct of fruit trees (Civil Code, arts. 483 and 484 include vineyards and olive trees), decorative trees and bushes, and a usufruct of a forest/wood (usufructo de montes), with the last including timber trees destined to be cut. In the case of a usufruct of trees or bushes, the usufructuary is granted the same rights as an ordinary usufructuary, except for the rules regarding dead, broken or uprooted trees. Consequently, since the usufructuary is obliged to preserve the property’s form and substance (Civil Code, art. 467), he/she is not allowed to cut fruit or decorative trees or bushes.135

135Lacruz Berdejo, Elementos, vol 3.2, p. 26 states that the usufructuary cannot cut fruit or decorative trees, change the vegetable garden into a flower garden, change the fac¸ade of the house or divide its rooms.

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However, if the trees or bushes are dead, uprooted or broken by accident, the usufructuary may remove them, subject to an obligation to replace what he/she has taken (Civil Code, art. 483).136

In the case of a usufruct of a forest/wood, the usufructuary has the right to enjoy all of the forest/wood’s resources, according to their nature (Civil Code, art. 485, para. 1). Timber plantations are considered natural fruits (Civil Code, art. 485, para. 2).137 The Civil Code allows the usufructuary to proceed with normal cutting, while taking care that the area subject to the usufruct will not suffer any damage. He/she has to follow the practice of the previous owner and, failing that, he/she must follow regional customs as to the manner, extent and time of cutting.138 If a nursery is subject to a usufruct, the usufructuary is allowed to thin out the plants in order to optimise growth of the rest of the plants. Finally, the usufructuary is not entitled to cut trees unless it will improve the condition of the property subject to the usufruct (Civil Code, art. 485) and he/she has notified the nude owner of his/her intention.

As mentioned before, under Spanish law, mines belong to the State, and a public concession is needed to exploit them. The usufructuary can, however, enjoy the products of an existing mine or quarry if his/her title contains an express reference to the mine (Civil Code, art. 476).139 In the case of a legal usufruct (granted by law to the widow or widower), the usufructuary is entitled to half of the proceeds of the mine after the running expenses have been deducted (Civil Code, art. 477). The other half goes to the nude owner. Finally, the usufructuary may obtain the concession for an existing mine in accordance with the general rules contained in the Law on Mines (Civil Code, art. 478).

It must be noted that the public concession of a mine can also be the subject of a usufruct. Authors consider that such a usufructuary is entitled to receive half of the proceeds of the mine after running expenses have been deducted.140

The usufructuary may lease the land to a third party (Civil Code, art. 480). Leases concluded by the usufructuary will terminate simultaneously

136Lacruz Berdejo, Elementos, vol 3.2, p. 46 considers that this obligation to replace the trees constitutes ordinary repair and is therefore chargeable to the usufructuary.

137Lacruz Berdejo, Elementos, vol. 3.2, p. 47.

138Although the Civil Code does not mention forest statutes and regulations, it is accepted that the usufructuary is also bound by them. See Maluquer de Motes Bernet, ‘Comment’, vol. 1, p. 1300.

139Lacruz Berdejo, Elementos, vol 3.2, p. 52.

140Ibid. 53; Pen˜ a Bernaldo de Quiro´s, Derechos reales, vol. 1, p. 630.

with the expiry of the usufruct, except in the case of the agricultural lease of a farm which will continue until the end of the agricultural year (harvesting season) (Civil Code, art. 480 read with Law on Rural Leases, arts. 10 and 24g). This exception also applies where agricultural leases have been concluded by the holder of a hereditary lease of land (emphyteusis) or a hereditary building lease (superÞcies). By contrast, residential leases concluded by a usufructuary shall expire simultaneously with the expiry of the usufruct without any exception (Law on Urban Leases, art. 13.2).

Natural, industrial and civil fruits belong to the usufructuary for the term of his/her right (Civil Code, art. 471). Natural and industrial fruits which have not been harvested at inception of the usufruct belong to the usufructuary, whereas fruits not harvested on termination of the usufruct belong to the nude owner (Civil Code, art. 472). Since civil fruits are acquired on a daily basis, they belong to the usufructuary in proportion to the duration of his/her right (Civil Code, art. 474).

The usuary can collect the fruits to the extent necessary to meet his/ her needs and those of his/her family (Civil Code, art. 524). According to the prevailing opinion, the usuary can even sell some of the fruits in order to satisfy these needs.141 In principle, the usuary may, if necessary, cut timber trees as they can be considered ‘fruits’ of the farm.142 Owing to its highly personal character, the right of use or habitation cannot be leased (Civil Code, art. 525).

As the hereditary building lease (superÞcies) is a long-term development right to build or to plant on someone else’s land, its holder is not allowed to cut trees or shrubs, with the exception of a plantation. The holder will not be able to operate a mine as this activity is not a part of his/ her right. The holder can sub-lease the building or the plantation and the lease contract will terminate when his/her right expires.143 Since the Civil Code does not regulate the holder’s entitlement to fruits, his/her rights as possessor of the property entitle him/her to obtain all kinds of

fruits during the duration of his/her right (Civil Code, art. 451, para. 1),144 and civil fruits will accrue to him/her on a day-to-day basis for the

duration of his/her right (Civil Code, art. 451, para. 3).

141Lacruz Berdejo, Elementos, vol 3.2, p. 81; Rams Albesa, ‘Comment’, vol. 1, p. 1386.

142See Lacruz Berdejo, Elementos, vol 3.2, p. 47.

143LRL, art. 10 provides this solution, in the case of a rural lease.

144Art. 452, para. 1 provides that where natural or industrial fruits have not been harvested at the end of the term the holder of the time-limited interest has the right to claim his/her expenses as well as a proportionate part of the harvest.