Comparative observations

purposes not provided for, exploiting the property improperly, damaging it or substantially altering it.5

In some jurisdictions the landlord may claim for damages aimed at recovering the reasonable cost of repairs6 on the ground of nonfundamental breach which does not entitle the landlord to cancel the contract.7 Certain jurisdictions even allow a claim for damages in the case of a fundamental breach if the landlord desires to keep the lease alive.8 By contrast, other jurisdictions do not allow a claim for minor damages prior to the termination of the lease in lieu of insisting on repairs.9 In France, the landlord, in lieu of claiming damages, may retain the amount deposited by the tenant at the inception of the lease against damage to the property or have recourse to the liability insurance which the tenant is required to obtain.10

In England, the remedies for breach of specific or general covenants are injunctions and damages, or, in the alternative, damages may be awarded to compensate the landlord for any loss or in lieu of an injunction. If the landlord’s lease contains a proviso for re-entry entitling him/her to forfeit it for the precise breach committed, he/she may be able to bring the lease to an end by forfeiting it. Furthermore, it may be possible for a third party (or landlord) affected by the tenant’s conduct, to bring an ordinary common law claim for private nuisance. It is also possible that more egregious behaviour will fall foul of the criminal law (such as public order offences).

The most prevalent remedy of the nude owner under usufruct for neglect or unreasonable exploitation of the property is an injunction (interdict) against the usufructuary compelling him/her to refrain from serious or repeated violations of his/her obligations.11 In the case of minor violations, the nude owner’s right to redress is restricted by the fact that the usufructuary has a discretion in deciding how and when to comply with his/her obligations, which forces the prudent nude owner

5See e.g. the German, Austrian, Portuguese, English, Danish and South African reports.

6South African law restricts damages to actual patrimonial loss.

7See e.g. the Spanish and Danish reports.

8E.g. under the Belgian and Spanish Civil Codes.

9E.g. damage which can be repaired at small cost. See e.g. the Belgian and South African

reports.

10See the French report.

11See e.g. the German, Austrian, Italian and South African reports. German law also allow an injunction if the usufructuary ignores a warning against certain activities issued by the landowner.

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to wait until the expiry of the usufruct before requesting restoration of the property and compensation.

In cases where a usufructuary’s conduct constitutes a risk of serious damage or poses a serious threat to his/her interests, some jurisdictions allow the nude owner to demand security against future damage to the property12 as a supplement to an injunction.13 In other jurisdictions, the usufructuary may be ordered by the court to co-operate with the nude owner in preparing an inventory of the property at the start of the usufruct and to provide personal or real security against future damage.14

In case of persistent serious damage to the land, the nude owner in some jurisdictions may demand that the administration of the usufruct be placed under the supervision of the court, a professional manager or even the nude owner.15 Under Greek law, this remedy is also available if the usufructuary is unwilling or unable to provide security. The management of the property will be handed back to the usufructuary as soon as security is provided or the grounds justifying the appointment of the manager have disappeared.

Most jurisdictions allow the landowner to claim compensation on termination of the usufruct for damage suffered due to non-compliance with the obligation to return the property without impairment of its substance.16 This can include, inter alia, compensation for the repair of the farmstead, outbuildings, fences and gates and for recultivation of neglected agricultural land. Under Belgian law, the landowner may claim compensation even during the term of the usufruct for damage if immediate and certain damage can be proved.

In principle, a usufruct cannot be cancelled or the usufructuary evicted before the usufruct expires owing to the death of the usufructuary or completion of the term of the usufruct.17 However, some

12See the German, Austrian, Greek, Italian, Hungarian and Polish reports. Under Hungarian law, security can be demanded from the usufructuary if the latter, after a warning, continues to exploit the property improperly, impairs its value or endangers the return of the property without impairment of its substance. Exercise of the usufruct can be suspended until the security is provided. In Poland, security can be demanded only where the usufructuary is allowed to undertake mining activities.

13See the Dutch and South African reports.

14See the Portuguese and Belgian reports.

15See the German, Austrian, Greek and Dutch reports. Under Italian law, the court may instead order that the property be leased out.

16The Scottish report emphasises that this is only possible on expiry of the usufruct.

17See e.g. the German and Polish reports.

jurisdictions allow the landowner to demand the return of the property if a request for security is ignored or if the property is seriously damaged or devalued through gross neglect of maintenance.18 Depending on the seriousness of the circumstances, the court may either order the complete termination of the usufruct or the return of the property to the nude owner subject to an obligation on the nude owner to pay a fixed annual amount of money to the usufructuary until the expiry of the usufruct.19 In Portugal and Spain, the landowner must hand over the net income of the property to the usufructuary every year.

In most jurisdictions, with the exception of Italy and Belgium, the remedies available to the landowner against a holder of the lesser personal servitude of use or habitation are less extensive than those available against a usufructuary. The German report, for instance, only mentions a court order to stop interference with the rights of the landowner and an action for compensation for damage caused intentionally or carelessly to the property. Greek law expressly denies a landowner to claim security against the holder of the right of habitation for unconscionable use of the property or to order the holder to insure the property against damage.

However, under Spanish law, the right of use or habitation expires automatically if the holder seriously abuses his/her right of enjoyment and the Polish Civil Code provides that in case of a strained relationship between the parties either party may request the court to convert some or all of the habitatorÕs rights into a fixed annual sum based on their value or, in an extreme case, to terminate the right of habitation.

Some jurisdictions by analogy extend the remedies applicable to usufruct or a hereditary land lease to the holder of a hereditary building lease (superÞcies).20 It is generally accepted, however, that the constitutive agreement establishing a building lease prescribes the parties’ rights and obligations in much more detail than that creating personal servitudes inter vivos. Consequently, the landowner’s most important remedy in practice is an action for breach of contract. If, for instance, the holder has substantially altered the physical condition of the structure without the landowner’s consent as required by the contract, the landowner may request the court to order the holder to restore the original structure, or claim compensation for damages suffered. Under German law, the landowner may in addition claim for the retransfer of

18See the Austrian, French, Belgian, Italian, Portuguese and Spanish reports.

19See the Belgian, French and Italian reports. 20 See the Belgian and Dutch reports.