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of land for less than the best consideration that can reasonably be obtained.27

South Africa

Unlike modern European jurisdictions which also cater for the development and use of existing buildings under the institutions of the hereditary land lease (emphyteusis) and the hereditary building lease (superÞcies), these two institutions are underdeveloped in South African law to the extent that they do not cater for existing buildings. This is also true of the institution of leasehold, which replaced the two institutions in South Africa.

If A is a public institution, in particular the State, the institutions of hereditary land lease (emphyteusis) and hereditary building lease (superÞcies) would have found some application in Roman-Dutch law but was swamped by the common law institution of leasehold in early South African law because the State was not prepared to grant full freehold title (ownership) with regard to undeveloped land. I have come across seaside cottages and timeshares being sold as thirty-year leaseholds, with the rights of the holders expiring after thirty years and the public authority or developing agency being entitled to sell or lease out the cottages or timeshares anew. However, this device is rarely used in practice.

Spain

In the case of an existing building, A may conclude a lease (governed by the Law on Urban Lease) with B for this purpose. The building will be restored to A at the end of the lease, but he/she will have no control over the structure during the term of the lease, unless otherwise agreed.

A public institution can conclude a contract by which it grants a concession to B to construct public works (contrato de concesio« n de obra pu«blica). Under this contract, the public institution (A) will have the right to recover the structure and the land at the end of the term of the concession. It must, however, be noted that such term cannot exceed forty years (Ley de Contratos de las Administraciones Pu«blicas

(Law on Contracts of Public Institutions) of 30 October 2007, art. 244).

27 Local Government (Scotland) Act 1973, s. 74(2).