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

Hungary

Hungarian law follows the principle of aediÞcium solo cedit with certain exceptions mentioned in the answer to Case 11.18 Once the building has acceded to the land, the owner of the land becomes the owner of the structure: the two cannot be separated again. The separation of the ownership over the land and an existing building can only be accomplished in the event that a new structure is built upon the land, the parties agree to this separation or the law makes provision for this to happen. Otherwise, the answers to Cases 10 and 11 are applied mutatis mutandis.

If A is a public institution, some of its assets may be exclusive state property (Civil Code, § 172; Law on Local Self Governments, § 79)19 and they may not be transferable (or their transferability may be restricted) (Civil Code, § 173). However, if the property does not fall under any of these special categories, no civil law provisions are applicable, particularly to public institutions.

Italy

Civil Code, art. 952 allows the owner of the soil to transfer ownership of an existing building separately from the ownership of the land. It can be transferred for a fixed term. On the expiry of the term, the owner of the soil becomes owner of the building.

Some scholars maintain that the transfer of an already existing building does not result in the creation of a hereditary building lease (superÞcie). According to Civil Code, art. 954, the destruction of the building does not amount to the extinction of the building lease (superÞcie), unless there is a contrary agreement. This means that when the owner transfers an already existing structure, the transferee does not obtain the right to rebuild the structure, unless the owner of the soil has expressly granted him/her such a right. According to this view, one must distinguish between three different rights:

(a)the hereditary building lease (superÞcie) proper, namely the right to erect a building above the soil of another;

(b)the proprieta` superÞciaria, that is the right on the building erected by the holder of the building lease (superÞciario), with the right to rebuild in case of destruction; and

18Gelle´rt, Commentary Civil Code, vol. 1, pp. 329–31.

191990 e´vi LXV To¬rve«ny a helyi ¬nkorma«nyzatokro« l (Law LXV of 1990 on Local SelfGovernment).

(c)the separate ownership of buildings transferred by the owner without the right to rebuild.20

The prevailing view, however, emphasises the unitary nature of the building lease (superÞcie) as a right to erect and maintain the building. Even if the ownership of an already existing building is transferred, the transferee acquires a building lease, which enables him/her to maintain the building above the soil. Consequently, whether the holder of the building lease has erected a building or acquired an existing building in terms of the building lease, he/she has the right to maintain the building and to rebuild it in case of destruction, unless there is a contrary agreement.21 Thus, according to the prevailing view, the situation is not substantially different from the one described in the answer to Case 10.

Public institutions quite frequently grant a developer the right to erect and maintain a structure above public soil. The right arising from such a concession is usually regarded as a true hereditary building lease (superÞcie), but some scholars prefer to classify it as a different, sui generis right, merely modelled on the building lease.22 Regulation of the right is dependent on the circumstances and on the applicable statute. Different public institutions have varying degrees of discretion to revoke the concession where public needs dictate that this is necessary. The right of the holder of the building lease to alienate and mortgage the structure is usually excluded or severely limited.

According to the prevailing view, the holder of the building lease has a genuine real right vis-a`-vis third parties, and a weakened real right (diritto afÞevolito) vis-a`-vis the public institution, which, by following the correct procedure, can revoke the concession and become full owner of the structure.

A statute enacted in 197123 provides that municipalities can create building rights over properties expropriated by the State. In the context of a strategy aimed at creating affordable housing for the general public, the statute provides that the municipalities can expropriate urban land and then grant hereditary building leases (superÞcie) for a fixed term of between sixty and ninety-nine years for the construction of affordable houses. The grant of the building lease must be approved by the town

20 See e.g. Salis, ‘La superficie’. 21 See e.g. Pugliese, ‘Della superficie’.

22See, generally, Pasetti Bombardella, ‘Voce Superficie’, Enciclopedia del diritto, vol. 43, pp. 1474 ff.; Guarneri, ‘Voce Superficie’, p. 219.

23Law 865 of 22 Oct. 1971.