2 General introduction

those aspects of the lease of land which endows the tenant with certain proprietary entitlements even in those civil law jurisdictions which do not recognise a lease as a limited or subordinate real right. In this regard, two historical developments in the law of lease are important. The first is the replacement of the rule of emptio tollit conductionem (sale breaks lease) with the maxim emptio non tollit conductionem (sale does not break lease). This entails that the purchaser of land has to respect the entitlements of an existing lease and allow the tenant to stay on the land for the duration of the lease. The history of this remarkable turnaround of the maxim is explained in the following chapter. The second aspect is the historical development of a distinction between two kinds of leases of land, namely residential leases and agricultural leases. This distinction has been received in most of the continental jurisdictions and today agricultural and residential leases are generally regulated by specific legislation applicable to each.

The topic of time-limited interests in land is of great relevance to many areas of property law. The ambit of time-limited interests in land is far reaching and can be said to encompass, with the exception of praedial servitudes and mineral rights, the most important categories of limited real rights. These include the personal servitudes of usufruct (liferent); use; habitation; superÞcies or hereditary building lease (the right to erect buildings on land); and emphyteusis1 or hereditary land lease (the right to improve the land by buildings or otherwise). Some jurisdictions such as Poland treat usufruct as a separate real right and distinguish it from the personal servitudes of use and habitation. Poland has also developed the interesting distinct personal servitude of lifetime habitation which has evolved into a useful estate planning device. Other jurisdictions such as Greece have tried to categorise the so-called irregular praedial servitudes under the personal servitude of use. These are servitudes created in favour of a particular person instead of the dominant land, for instance, the right to graze, draw water or pass over land to reach a family graveyard. Moreover, certain jurisdictions have adapted or modernised the Roman-law institutions to suit their own peculiar circumstances, while others have combined the institutions of superÞcies and

1The noun emphyteusis is derived from the Greek verb meaning ‘to cultivate’. The institution was developed around 400 bc in Greece and appeared in Roman cities not later than the third century bc. See Yiannopoulos, Louisiana Civil Law, p. 343, § 225; Johnston, ‘Emphyteusis’, p. 323; Rome, ‘An Elegy for Emphyteusis’, p. 4.