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The Austrian report suggests that the maintenance obligation can be made effective against successors-in-title if it is registered in the form of a land charge (Reallast) in favour of B’s land or a certain person. Once registered, it obliges the owner of the land to perform certain services. Danish law will allow the maintenance obligation to be registered as an easement which can then be enforced against A’s successors-in-title. If unregistered, it will only bind successors-in-title who acquire the property in bad faith.

Austria

B’s option to purchase can be made enforceable against third parties if it can be construed as a right of pre-emption in terms of Civil Code, § 1072. Accordingly, the seller may include a clause in the contract of sale which obliges the purchaser to offer the property to the seller if he intends to resell it. Despite the wording of Civil Code, § 1072, a right of pre-emption can also be created by other contracts and not only by a contract of sale.9 Under Civil Code, § 1073, a right of pre-emption can be registered with the Land Register whereupon it becomes a right in rem and effective against third parties. A right of pre-emption can, however, only be exercised if the owner intends to sell his/her property and receives a binding offer from a third person (Civil Code, § 1079, sent. 2). In such a case, the holder of the right of pre-emption has the possibility to acquire the property by accepting the conditions under which the third party would have bought it.10

In order to allow B to buy the property whenever he/she wants, A and B can conclude an option agreement. An option agreement defines the terms of a prospective contract between the parties and entitles the holder of the option to exercise the option and obtain performance under the contract.11 In contrast to a right of pre-emption, however, an option gives rise to a personal right which cannot be registered in the Land Register.12 It cannot therefore be made enforceable against third persons.

9Welser, in Koziol and Welser, Bu¬rgerliches Recht, vol. 2, p. 172. See also 1 Ob 653/83; SZ 56/96 (pre-emption right of tenant).

10Welser, in Koziol and Welser, Bu¬rgerliches Recht, vol. 2, pp. 173 ff. See also 1 Ob 653/83; SZ 56/96.

11Aicher, in Rummel, Kommentar, vol. 1, § 1072, para. 33.

12See the exclusive list of rights which can be registered in s. 9 of the Law on Land Register; Ob I 455/25; SZ 7/184; District Court of Vienna 13.11.1948, 41 R 1427; EvBl (1949), p. 84; Aicher, in Rummel, Kommentar, vol. 1, § 1072, para. 33.

If the maintenance obligation is constituted as a contractual obligation only, it cannot be enforced against third parties. If A and B, however, create a land charge (Reallast), B acquires a right in rem.13 A land charge is registered in the Land Register (Law on Land Register, § 12) and obliges the owner of the servient land to perform certain services.14 A land charge can be for the benefit of a certain plot of land or a certain person.15

Belgium

It is assumed that the developer has been granted either a hereditary building lease or a hereditary land lease over the land, both of which are rights in rem. It is also assumed that such contracts have been properly prepared by a notary public and registered in the Land Register. To the extent that these formalities have been observed, the hereditary building lease and the hereditary lease of land are fully enforceable against C. However, an option to purchase, even when incorporated in the constitutive contracts of these institutions, is not enforceable, since it does not form part of the building or the land lease. An option is a mere personal right and does not create a real right over the property.16

In the first instance, the purchase by C from A will provide B with a contractual claim for breach of contract against A. A’s claim against C will only be entertained if B is able to show that C purchased from A in the knowledge that B had a contractual option to purchase. This will be covered by the legal doctrine of third party complicity to a contractual breach (derdenmedeplichtigheid/tierce complicite«). The fact that a hereditary building lease or a hereditary land lease is registered in the Land Register (including the option) can be an element indicating knowledge on the part of the purchaser. If C is held liable, the remedies available to B may be annulment of the contract and replacement of C by B, or compensation for damages.17

Were A to sell the property without either continuing to maintain the gardens or imposing the same obligation on the third party purchaser, it

13There was a similar land charge in the case 7 Ob 517/92 (obligation to plant and maintain a hedge).

147 Ob 517/92; OGH 8.4.1997; 5 Ob 81/97s; NZ (1998), p. 87 (Hoyer); 5 Ob 167/02y; NZ (2003), p. 247 (Hoyer); Kletecka, in Koziol and Welser, Bu¬rgerliches Recht, vol. 1, p. 433.

15Kletecka, in Koziol and Welser, Bu¬rgerliches Recht, vol. 1, p. 433; Hofmann, in Rummel, Kommentar, vol. 1, § 530, para. 2.

16Supreme Court of 12 Dec. 1991; RW (1992–3), p. 217 n. Carette.

17See Supreme Court of 27 Apr. 2006, ARC04.0591.N, available at www.cass.be.

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will constitute a breach of contract (especially if it were expressly indicated that his/her successors will also have such an obligation). If A imposed the same obligation of maintenance on C such a clause will in general qualify as a stipulation in favour of a third party (derdenbeding/ stipulation pour autrui).18 If this is the case, B has a contractual right against C to compel the latter to fulfil the obligation.

The garden maintenance obligation will only be enforceable against the purchaser of land adjacent to the development sold by A if it takes the form of an easement (servitude) benefiting the developed land and encumbering the neighbouring land. A mere obligation to maintain gardens will not be deemed an easement between two parcels of land since it is a personal obligation that binds an individual and does not encumber land. There is a numerus clausus of real rights and the parties will not be able to create new forms of real rights.19 B will only have a contractual right for damages against A. If A, however, imposes the same obligation of maintenance on C and that clause qualifies as a stipulation in favour of a third party, B will have a contractual right against C to oblige the latter to fulfil that obligation.

The answer could be different if A sells the land under development in respect of which the real right under a hereditary building lease or a hereditary land lease was granted. To the extent that certain obligations are imposed on the grantor of the real right as owner of the property subject to the real right (qualitate qua), some academics have argued that such rights and obligations form part of the real right and are therefore enforceable against a third party purchaser of the property subject to the real right (if the contract is registered in the Land Register). It will depend on the exact phrasing of the clause whether or not the maintenance obligation can be considered an integral part of the real right under a hereditary building lease or a hereditary land lease of land, or merely a personal contractual undertaking (which can, for instance, be a separate garden maintenance contract). An additional element to consider is that garden maintenance will normally be the responsibility of the holder in the case of a hereditary land lease. This statement is not unanimously accepted. The majority viewpoint is that it is doubtful whether such an obligation can be regarded as anything more than a personal undertaking which does not bind the purchaser.

18See Carette, ‘Het derdenbeding’, nos. 44 ff.

19See Supreme Court of 16 Sept. 1966, RCJB 1968 116 n. Hansenne.

Denmark

The option to purchase can validly be registered as an easement in the Land Register. If registration has taken place before C submits his/her deed to be registered, the option is clearly enforceable against C. In a Supreme Court case,20 a tenant’s registered option to purchase was overlooked by a bank that transferred the property to a fund/trust within the bank group. As a result of the decision, the tenant was reinstated and the landlord was forced to reverse substantial alterations of the buildings.

B’s right is also protected, even if it is not registered, where the purchaser knows or should have known about B’s option at the time when C’s deed was submitted for registration (Law on Registration of Property, s. 1 and 5). Extinction of prior rights presupposes good faith on the part of the assignee.21

If the provision of the contract between A and B regarding the maintenance of the garden is registered in the Land Register as an easement, it must be respected by any third party buying the property. If not registered, it must only be respected where the assignee is in bad faith, otherwise the right will be extinguished (Law on Registration of Property, s. 1). In order to be registered, all easements must contain a provision stating who is entitled to enforce the easement (Law on Registration of Property, s. 10 (6)). In this case it seems that neither A nor B has a real interest in whether the third party as a new owner maintains the gardens or not. If no one has an incentive in enforcing the obligation, then the third party will not be held responsible even where the easement is registered.

England

An option to purchase22 is a property right under English land law, and will run with the land if it is appropriately noted in the Land Register.23

20Supreme Court decision of 6 Feb. 2002 (UfR (2002), p. 965). See also Supreme Court decision of 12 Oct. 2004 (UfR (2005), p. 194) where a buyer in a similar way was forced to respect a registered right to purchase. He could not even claim damages from the seller.

21See Buch and Møller, Projektudvikling af fast ejendom, p. 92.

22A different creature is the right of pre-emption, which is triggered by the volition of A as opposed to the intention to purchase by B. It is not considered here.

23Ruoff and Roper Registered Conveyancing, para. 42–004. See, though, LRA 2002, s. 91

for the proposed changes for electronic conveyancing. It may be registered as a land charge in unregistered land. See Land Charges Act 1972, s. 2(4)(iv).