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the breach is not fundamental, or if the owner so chooses, he/she may instead demand that B reverse the contractual breach by restoring the property. B can also be forced to pay damages even where the breach is not fundamental.

The same rules apply to the lease of buildings. If the breach is fundamental and is covered by the exhaustive list of reasons for terminating the contract in the Law on Private Housing, s. 93 and the Law on Commercial Premises Rent, s. 69 the landlord may terminate the contract.29

In case of non-fundamental breach the tenant (B) must return the premises to their original condition at the latest at termination of the lease. The tenant is liable for any damage caused by improper conduct on his/her part, by any member of his/her household or by any third party he/she has admitted to the premises (Law on Private Housing, s. 25(2) and Law on Lease of Commercial Premises, s. 33(2)).

England

In the first instance, the express and implied terms of the lease govern the conduct of the tenant. These duties may be very specific, such as an obligation to effect certain repairs, to run only ‘high-class’ establishments or to run only certain specified trades. The duties may also be more general, so as not to cause, or permit to cause, nuisance or annoyance, or illegal or immoral behaviour. Covenants of the latter type set a higher standard than that required to establish common law nuisance.

The remedies for breach of covenant of the above type are injunctions (which, being equitable remedies, are discretionary and subject to the usual equitable limitations, such as not being available where the claimant has delayed, acquiesced in the defendant’s conduct or otherwise behaved inequitably). Further or alternatively, damages may be awarded to compensate for any loss or in lieu of an injunction. Finally, if the landlord’s lease contains a proviso for re-entry entitling him to forfeit it for the precise breach committed, he/she may be able to bring the lease to an end by forfeiting it. Relief from forfeiture will be available in the usual manner.

29The lease may be terminated, for example, in case of default in the punctual payment of rent; in cases where the premises are being used in a manner other than that agreed upon and the tenant fails to discontinue such use despite the landlord’s objection; in cases where the tenant has vacated the premises without any agreement with the landlord; and finally, in cases where the tenant neglects the premises and fails to repair the premises without delay upon notice by the landlord requiring the tenant to do so.

Furthermore, it may be possible for third parties affected by the conduct (or the landlord, if affected) to bring ordinary common law claims for private nuisance. It is also possible that more egregious behaviour will fall foul of criminal law (such as public order offences). In practice, however, leasehold covenants will be the landlord’s primary avenue to a remedy.

France

Civil Code, art. 1184 provides that the remedies available to A under a lease in the case of non-performance by B are a claim for specific performance or cancellation of the contract by the court and the payment of compensation for damages caused by the conduct of B. These remedies can also be found in certain statutory provisions. The tenant is liable for deterioration or destruction of the property unless he/she can prove that it occurred without fault on his/her part (Civil Code, art. 1732). The condition of the premises is compared with the inventory of the property drawn up at the inception of the lease. If no such inventory has been prepared, the tenant is presumed to have received the property in a good condition (Civil Code, art. 1731).

Under a residential lease, the tenant is liable for destruction or deterioration of the property unless he/she can prove that this is due to superior force, fault on the part of the landlord or the act or omission of a third party allowed access to the property by the landlord. In the absence of such proof, the landlord may retain, to the extent of his/her loss, the deposit paid by the tenant at the inception of the lease as security for performance of this obligations (Civil Code, art. 22) or have recourse to the proceeds of liability insurance which the tenant is required to obtain (Civil Code, art. 7).

The landlord may, in appropriate circumstances, institute an action for the cancellation of an agricultural lease and the payment of damages (Civil Code, art. 1766).

A usufruct may be terminated if the usufructuary abuses his/her right of enjoyment by harmful activities or where he/she causes decay through lack of maintenance (Civil Code, art. 618). The court must decide whether the seriousness of the acts or omissions justifies the termination of the usufruct or the transfer of the premises to the nude owner on the condition that he pays a fixed annual sum to the usufructuary until the expiry of the usufruct.

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Germany

Generally speaking, the landlord can demand either specific performance or cancellation of the lease, or compensation for damages suffered. He can also request a court order restraining the tenant from certain activities which violate the contract. In practice, the most important remedy is the landlord’s right to cancel the lease and to evict the tenant. The conditions for cancellation differ according to the type of lease concerned. During the past twenty years, a detailed set of rules has been introduced, supplemented by extensive case law to strengthen the position of tenants under residential leases and to prevent their summary eviction (Civil Code, §§ 568 ff.).

Various remedies are available to the landowner (A) under usufruct if the usufructuary (B) exploits the property in an unreasonable manner or neglects his/her duties. A may request a court order compelling B to refrain from injurious activities if B has ignored a warning (Civil Code, § 1053). If A has reason to assume that B’s conduct can cause him (A) serious damage, A can demand that security be given against future damage (Civil Code, § 1051). If, despite a warning, B continues to cause serious damage, A can demand that the management of the usufruct be placed under the administration of the court (gerichtliche Verwaltung) (Civil Code, § 1054). Where B collects more profits than he is entitled to, A can claim for the fair market value of all fruits not due to B (Civil Code, § 1039). Finally, A may claim compensation for damages suffered because of B’s failure to comply with his/her obligations. However, it is not possible for A to cancel the usufruct and eject the usufructuary.

Compared to usufruct, fewer statutory provisions cover the remedies provided to a holder of a limited personal servitude (Civil Code, § 1090) and the holder of a right of habitation (Civil Code, § 1093). Generally speaking, the landowner (A) may obtain a court order to stop any interference with his/her rights and where damage is caused, A has a claim for compensation if fault can be proved.

Agreements to establish a hereditary building lease (Erbbaurecht) usually prescribe the parties’ rights and obligations in much more detail than those creating personal servitudes. Consequently, the holder’s most important remedy in practice is an action for breach of contract. Moreover, the landowner can request retransfer (Heimfall) of the building lease against payment of a fair compensation for improvements if the conditions for retransfer set out in the contract are met (Regulations, § 2 nos. 4 and 32). If, by way of example, B has substantially altered the

physical condition of the structure without obtaining A’s prior consent as required by the contract,30 A can request a court order compelling B to restore the original structure. A may also claim compensation for damages suffered (the sum of money necessary to restore the original condition) or claim retransfer of the building lease. If, however, B has made only minor alterations to the structure which do not in fact significantly harm a justifiable interest of A, such a claim will normally be rejected as disproportionate.

The remedies available to the owner against the holder of a permanent right of habitation (Law on Apartment Ownership, § 31(1)) are similar to those available against the holder of a building lease (see Law on Apartment Ownership, § 36 regarding retransfer of the property).

Greece

If the tenant makes improper use of the property, the landlord is entitled to give notice of immediate termination of the lease and to claim compensation for damages.31 Such conduct is present where the tenant, notwithstanding the protest of the landlord, uses the property without due care and in a manner inconsistent with the agreement,32 or does not behave appropriately towards the other tenants (Civil Code, art. 594).33

Subject to contrary agreement, the nude owner shall have the right to demand security from the usufructuary where the exercise of the usufruct poses a serious threat to the nude owner’s rights (Civil Code, art. 1159). If the usufructuary is unwilling or unable to provide security or if he/she has seriously harmed the rights of the nude owner, the owner may request a court order for the lease of the property to an outsider or for the management of the usufruct to be entrusted to a manager for the account of the usufructuary. The court may also decide to appoint the nude owner as the manager. The management of the property shall return to the usufructuary upon security being provided or when the grounds justifying the appointment of the manager disappear (Civil Code, art. 1160). If the rights of the nude owner are seriously harmed, the nude owner can claim for damages during or at the expiry of the usufruct.34

30See Case 7.

31Rapsomanikis, in Georgiades and Stathopoulos, GCC, Collective Analysis, art. 594, nos. 6–10 (319); AP 812/1979; NoV (1980), p. 73.

32AP 88/1973; NoV (1973), p. 767.

33AP 1658/1983; NoV (1984), p. 1526; AP 689/1970; NoV (1971), p. 170.

34Karasis, in Georgiades and Stathopoulos, GCC, Collective Analysis, art. 1142, no. 32 (58).