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

the building right against payment of a fair compensation for improvements if the conditions for re-transfer set out in the contract are met.

A remedy is available to the landowner in the form of an action to terminate the hereditary land lease (emphyteusis) if the holder seriously fails to comply with his/her obligations,21 grossly abuses his/her rights or causes serious damage to the property.22 The holder of the hereditary land lease may stay the termination by repairing the damage caused and by providing security against future damage.

On termination of the hereditary land lease, the landowner under Belgian law is entitled to claim expenses and compensation for damage and loss of rent caused by the holder’s negligence and lack of maintenance. Under Dutch law, the landowner is allowed to deduct his/her expenses as well as compensation that can be claimed from the amount he had to pay the holder for improvements to the property. Polish law provides that, before terminating the hereditary land lease, the landowner may set a new date for the completion of a building which was not completed within the agreed time against payment of an additional rent.

In Hungary, a loan for use can be terminated with immediate effect if, inter alia, the borrower damages the property, uses it improperly, abandons its use to a third person without the permission of the lender, or if there is a risk that the borrower will not return the property in a sound condition. However, the law does not confer an express right of control on the lender.

Austria

If the tenant under the lease uses the leased object in a way which contravenes the terms of the contract, the landlord can ask the court for a prohibitory injunction. If the unlawful use is due to negligence, the landlord can also claim damages (Civil Code, § 1111). If the unlawful use causes serious damage to the property, the landlord may terminate the contract (Civil Code, § 1118, Law on Tenancy, § 30, para. 2, no. 3).

Under Civil Code, § 520, the nude owner can claim security against future damage to the property if the usufructuary behaves in a way which objectively creates a risk of damage to the land. Furthermore, the owner

21Under Dutch law if the holder fails to pay the annual rent for two consecutive years, or under Polish law if the holder exploits the land contrary to the terms of the grant, for example, where he/she fails to erect buildings which he/she has undertaken to erect.

22See the Belgian and Polish reports.

may ask the court for an injunction prohibiting future damage.23 If no security is provided, the owner can claim the return of the property (and thus the termination of the usufruct) or ask for the administration of the property by the court.24 The same applies to the right of use, the right of habitation and the hereditary building lease.

Belgium

In the case of a residential lease, Civil Code, art. 1730 requires an extensive inventory of the property at the outset (prepared by both parties either before the tenant enters into occupation or during his/her first month of residence). In the case of an agricultural lease, one party can demand from the other to co-operate with the preparation of such an extensive inventory during the first three months (Law on Agricultural Lease, art. 45–6). In the absence of this inventory, there is a presumption in favour of the tenant that he received the property in the same condition as it is upon termination of the lease, unless there is proof to the contrary. The tenant must return the property in the same condition he received it, as recorded in the inventory, except for items which have been destroyed or damaged on account of fair wear and tear or force majeur. The landlord may request personal or real security from the (residential or agricultural) tenant guaranteeing his/her compliance with his/her lease obligations.

In case of non-performance, the landlord may ask for specific performance if possible and if not, may claim compensation or, in the case of sufficiently serious default, cancellation of the lease, if necessary together with compensation for the damage caused. A pactum commissorium or explicit resolutive clause is forbidden by law (Civil Code, art. 1762 bis; Law on Agricultural Leases, art. 29). Cancellation of the lease always requires the court’s intervention (Civil Code, art. 1184).

These remedies (compensation, specific performance or cancellation) may be invoked by the landlord if, for example, the tenant changes the intended purpose of the property without the consent of the owner or the tenant acts contrary to the standards of a bonus paterfamilias. If the tenant causes damage to the property (for example, because of a lack of maintenance), the owner may in principle only claim compensation or repair on termination of the lease,25 unless the tenant has caused

231 Ob 502/88; JBl (1989), p. 103; Hofmann, in Rummel, Kommentar I, § 520, paras. 2 ff.

24Hofmann, in Rummel, Kommentar, I, § 520, para. 3.

25See Supreme Court of 25 Feb. 2005, Arr Cass (2005), p. 481.

or trustee. However, it is conceivable that a judge will appoint an administrator or sequester to supervise the management of the property. We are not aware of case law in this regard.

Under a hereditary land lease (emphyteusis), the owner on termination of the lease may claim costs, damages and interest caused by the negligence and lack of maintenance on the part of the holder, including damages for the loss of rights which the holder allowed to lapse under the rules on prescription (Law on Hereditary Land Lease, art. 13). The owner has the right to terminate the hereditary lease on the ground of extensive damage caused to, or serious abuse of, the property (cf. usufruct). The tenant may counter such a claim by effecting repairs and providing sufficient security against future damage (Law on Hereditary Land Lease, arts. 15 and 16). The parties may contractually extend or limit the grounds for such early termination, provided they relate to non-performance or noncompliance with obligations under the hereditary lease. Parties could agree on a pactum commissorium, an explicit resolutive clause allowing the owner to dissolve the contract automatically if the tenant does not comply with his/her obligations under the lease.27

Since it is disputed whether the provisions of Civil Code, art. 618 or the Law on Hereditary Land Lease, art. 15 can be applied by analogy to the holder of a hereditary building lease (superÞcies), the parties are advised to regulate their position in this regard in the constitutive contract. This leaves the owner, in the absence of contractual provisions, relatively unprotected compared with owners under a usufruct or a hereditary land lease.

Denmark

Under a lease of land, the landlord’s remedies depend on a breach of contract by the tenant. If this is not the case, the landlord (A) may only terminate the contract on notice, except where the contract is irrevocable.

If the tenant (B) has acted in breach of the contract, the owner (A) may terminate the contract without notice if the breach is fundamental. An injunction can be issued if the restrictive requirements of the Law on Administration of Justice, s. 64228 are met. A may also claim damages. If

27See Supreme Court of 30 Mar. 2006, Pas. 2006 I 720; TBBR (2008), p. 88 n. Waterkeyn; T Not (2008), p. 97 n. Sagaert and Somers; RW (2006–7), p. 678 n. Vanhove.

28Consolidated Act, no. 1069 of 6 Nov. 2008 and later amendments.