enforcement proceedings, a usufructuary right can be liquidated in accordance with the Law on Execution, §§ 331 ff. Primarily, the usufructuary right shall be liquidated by forced administration or by a forced income-producing lease.76 The usufructuary right may be sold in execution only if these proceedings are neither possible nor economically expedient.77

A hereditary building lease can be mortgaged and attached in execution as well.78 On expiry of a building lease, the building passes into the ownership of the landowner. A mortgage on the building lease, in this case, continues as a mortgage on the land (Law on Building Rights, s. 9). Furthermore, the mortgage also encompasses the compensation which the holder receives from the land owner on expiry of the building lease (Law on Building Rights, s. 10).

Time-limited rights in land are included in B’s insolvency or bankruptcy assets as far as it is possible to attach them (Law on Insolvency, § 1).

Belgium

A lease can be assigned gratuitously or for consideration. The assignment of a residential lease is subject to the consent of the landlord. In case of such consent, the tenant (assignor) is discharged from all future obligations, unless otherwise agreed.

The assignment of an agricultural lease is in principle also subject to the consent of the landlord. The tenant, however, remains liable to the landlord, unless the latter discharges him/her. However, an agricultural tenant can assign the entire lease to specific relatives without the landlord’s consent. The tenant then remains jointly liable with the assignee to the landlord. However, if the tenant (or his/her heirs) notifies the landlord of the name and address of the assignee within a period of three months after the latter’s occupation, the lease will be renewed automatically by operation of law unless the landlord’s objection to such renewal has been accepted. The assignee becomes the holder of a new lease and the tenant is then discharged from future obligations to the principal landlord.

Since a lease gives rise to merely personal rights, the tenant cannot create separate time-limited rights in rem. For the same reason, he/she cannot mortgage his/her rights, although a pledge is possible.

76Oberhammer, in Angst, Kommentar, § 331, para. 39; 3 Ob 35/93; NZ (1995), p. 275.

773 Ob 268/03y; JBl (2004), p. 637.

78Hofmann, in Rummel, Kommentar, vol. 1, § 448, para. 8.

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In a residential lease, the tenant is entitled to sub-lease. A sub-lease does not affect the relationship between the landlord and the tenant (sublandlord). The tenant is liable for the damage caused by the fault of the sub-tenant. In case of a residential lease, sub-lease of the entire property is forbidden. With the consent of the landlord the tenant (sub-landlord) can sub-lease a part of the property if the tenant continues to occupy the other part of the house as his/her principal residence. It is not relevant whether or not the sub-tenant will have his/her principal residence in the sub-leased property. The duration of the sub-lease may not exceed the remaining term of the principal lease. There is no direct contractual relationship between the landlord and the sub-tenant. Termination of the principal lease for whatever reason, results in the termination of the sub-lease. Within these limits, it also seems possible for the tenant to create a loan for use.

In the case of an agricultural lease, the sub-lease of the entire or a part of the property is subject to the consent of the landlord. However, a sub-lease of the entire property to certain relatives is possible without the consent of the landlord. The term of the sub-lease is limited to the term of the principal lease. There is no direct contractual relationship between the landlord and the sub-tenant. Termination of the principal lease for whatever reason, results in termination of the sub-lease. A specific feature of an agricultural lease is that the exploitation of the farm can be exchanged without the landlord’s consent, for example, the tenant can allow another farmer to exploit a part of the leased land in exchange for his/her exploitation of part of the land of the other farmer. This is a sui generis contract that does not impact the rights and obligations of landlord and tenant.

The lease as such cannot be attached in execution for the tenant’s debts. However, it will be possible to attach certain personal rights flowing from the lease, such as claims for repairs to be effected by the landlord. By contrast, a lease is included in the tenant’s insolvency assets. The administrator in bankruptcy (curator) has a discretion to continue the lease, in which case all the benefits and liabilities under the lease accrue to the insolvent estate, or to stop performance under the contract, in which case the landlord can demand the dissolution of the contract and vindicate the property.

In principle, the holder of a usufruct may sell, donate or mortgage it.79 The usufructuary can also create a further usufruct on the right of

79Verbeke and Vanhove, Actualia vruchtgebruik, pp. 73–101; Vanhove and Baudoncq, ‘Combinatie van beperkt zakelijke rechten’, pp. 135–53.

usufruct (the creation of a usufruct on the property itself is also possible). Generally, it is not possible to create a hereditary land lease (emphyteusis) or a hereditary building lease (superÞcies) on the right of usufruct, although some authors are of the opinion that the creation of a hereditary building lease is conceivable. Although newly created rights are in principle limited by the entitlements of the holder himself, the usufructuary may burden the property with any lease (including a residential or agricultural lease), even if this would exceed the term of usufruct, on the understanding that it will expire on termination of the usufruct.80 The usufructuary may also allow a loan for use. Additionally, he/she may allow or acquire servitudes which burden or benefit the property subject to the usufruct.

The usufructuary’s rights are open to attachment for the holder’s debts (Judicial Code, art. 1560–2). The rights may also be included in the insolvency or bankruptcy assets of the holder. There is one exception to this general principle. Owing to their strictly personal character, the holder of a right of use or habitation may not sell, donate or mortgage it (Civil Code, arts. 631 and 634). Furthermore, the rights are neither open to attachment nor included in the insolvency or bankruptcy assets. The holder cannot burden his/her time-limited right by creating a separate limited right. Even the possibility of burdening the property with a lease or loan for use is excluded.

In principle, the holder of a hereditary lease of land (emphyteusis) or a hereditary building lease (superÞcies) may sell, donate or mortgage it.81

The holder of a hereditary land lease is entitled to grant certain limited real rights over the hereditary lease such as a usufruct, but not a hereditary building lease (although it seems possible to create such a right over the property itself) or (according to the view of a majority of academics) a further hereditary lease over the existing one (although it seems possible to create a further hereditary lease of land over the property itself). He/she is entitled to burden the land with any lease (including a residential or agricultural lease) or a loan for use. Regarding

80Indeed, in the case of lease, there is an exception to the rule that the usufructuary may not create rights that exceed his/her entitlements to the property. The nude owner must respect a lease with a fixed period of a maximum of nine years, except in the case of fraud. If the lease runs longer than nine years, the nude owner is only bound by the current nine-year period at the time of termination of the usufruct (Civil Code, art. 595). Civil Code, art. 595 also deals with lease renewals.

81Verbeke and Vanhove, Actualia vruchtgebruik, pp. 73–101; Vanhove and Baudoncq, ‘Combinatie van beperkt zakelijke rechten’, pp. 135–53.

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servitudes, the situation is the same as under usufruct. The holder of a hereditary building lease is entitled to grant certain limited real rights over his/her building lease such as a usufruct, but not a right of surface and (according to the view of a majority of academics) not a hereditary lease of land.

In general, the transfer, mortgage and creation of limited real rights are restricted by the content and duration of the time-limited interest of the holder (unless otherwise indicated) according to the maxim nemo plus iuris transferre potest quam ipse habet.

The holder’s time-limited real rights are open to attachment for the holder’s debts (Judicial Code, art. 1560–2). The rights may also be included in the insolvency or bankruptcy assets of the holder.

Denmark

Under a land lease, B is not entitled to sell, donate or create a separate limited right without the permission of the owner. Where the owner has given his/her permission, the right of the purchaser/beneficiary/ holder of the sub-lease will not comprise more than B’s right under his/her contract. It is not possible to mortgage the right.

As B’s time-limited right is personal in nature, it cannot be attached in execution proceedings against B. However, if B has a monetary claim against A, B’s creditors may supersede his/her right to the money. Time-limited rights can be included in B’s bankruptcy assets as the bankrupt estate may adopt any synallagmatic contract (Law on Bankruptcy, s. 55).

The tenant cannot sell or mortgage a lease of buildings for residential purposes, but the right to use the premises can be transferred either in part or in its entirety. Any tenant of a flat is entitled to sub-let up to half of the rooms of the flat for residential purposes without any time limits (Law on Private Housing, s. 69). In addition, certain tenants are entitled to sub-let a flat82 which is let exclusively for residential purposes for a period not exceeding two years where the absence of the tenant is temporary and is due to illness, business, studies and job placement (Law on Private Housing, s. 70). Neither of these provisions can be deviated from to the detriment of the tenant.

82Sub-letting the whole flat presupposes that the property comprises more than thirteen flats, that the total number of persons in the flat will not exceed the number of rooms and that the landlord cannot object to the sub-letting on any reasonable ground.