Экзамен зачет учебный год 2023 / Van Erp,Towards a Unified System of Land Burdens

Monika Hinteregger

The holder is, however, allowed to assign claims that have already become due, and, within certain limits, the Ausgedinge is seizable.46

46G. Iro, supra note 17, p. 190; K. Hofmann, supra note 16, § 530, No. 5; M. Binder, supra note 2, p. 169; D. Kiendl-Wendner, supra note 13, § 530, No. 9.

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THE FRAGMENTED SYSTEM OF LAND BURDENS IN FRENCH AND BELGIAN LAW

1.Introduction

Broadly speaking, legal systems can have two approaches to land burdens. One approach is to have a uniform approach, providing for general requirements which apply to all land burdens, whatever may be their name or category. This is the American model, which has been adopted in the (third) Restatement of Property in 2000. The most obvious advantage of this approach is that the standards for the different types of land burdens are coherent.

Another approach is to recognize a fragmented system of land burdens, providing for different rules for each type of land burden which is legally recognized. This is the French-Belgian approach. The French and Belgian law on real burdens is characterized by fragmentation. Both French and Belgian law permit different types of limited real rights, each type attributing different powers to their holder and each type subject to different requirements.

In the original Civil Code, only one specific real burden was provided, i.e. servitudes. Through the development of case law and statutory amendments, both Belgian and French law have different degrees of powers which can be conferred to the holder of a property right on an immovable: servitudes, building rights, long leases, (immovable) usufruct, including the rights of use and habitation. There are different manners in which these limited property rights can be categorized: (1) the rights which are vested in favour of another parcel and the rights which have no connection with another parcel, (2) the rights conferring general rights to use another’s land and the rights conferring a specific right to use another’s lands, (3) the rights which have been awarded by the legislator in order to organize a costeffective system of land burdens and the rights which have been awarded in order to enable parties to make land more effective for their own purposes. All these distinctions result in the same borderline between, at the one side, servitudes and, at the other side, the general real burdens such as long leases, building rights and im-

University of Leuven and Antwerp, Barrister at Brussels Bar.

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The Fragmented System of Land Burdens in French and Belgian Law

movable usufruct. The servitudes will, for that reason be subject to a more in depth analysis in this contribution.

In this contribution, we shall first give an overview of the different existing limited property rights in real estate. We will focus in particular on the extent and borderlines of these rights, in order to determine the limits of the real burdens. In a second stage, we will deal with the possibilities to create land burdens which have not been regulated by the legislator. Furthermore, we will deal with the historical and legal-economic rationale for the borderlines which will have been detected. Finally, we will analyse whether these borderlines enable a flexible approach if, after the collapse of a certain time, the land burden has become useless or obsolete. This a posteriori analysis is also necessary in order to evaluate the cost-effectiveness of the French-Belgian system of land burdens.

The provisions of the French Civil Code are still the basis of Belgian property law, at least in so far as they have not been amended since then. Moreover, Belgian legal scholars and case law have been subject to the major influence of French law on this point. Therefore, we will give an analysis which encompasses both legal systems, and will only distinguish on these aspects where French and Belgian law have opted for different solutions.

2.Overview of the Limited Property Rights in Real Estate

2.1.Servitudes

As to servitudes, French and Belgian law have remained unchanged since the introduction of the Civil Code in 1804. Article 637 of the French and Belgian Civil Code provides a mandatory definition with strict requirements: a servitude is ‘a charge imposed on a real estate for the use and utility of another real estate belonging to another owner.’1 A servitude only allows a limited use of the servient tenement which has to be described expressly when the servitude is created. Thery are different from the general rights to use a land, as it is conferred to the holder of a long lease or (to a certain extent) to the usufructuary of a land.

Three requirements can be set out as essential characteristics of servitudes: (1) it is a burden on land (2) in favour of land and (3) the servient tenement and the dominant tenement have a different owner.

1. The first requirement is that the passive side of the servitude must have an objective nature, e.g. it must be a burden on the servient tenement, not on its owner. The objective nature of the servitude at its passive side is equated to its negative nature. A servitude can only compel the owner of the servient tenement to passive behaviour, i.e. an obligation not to do something (‘non faciendo’). This passive obligation can take two forms: either the owner of the servient tenement can not

1This translation and all other English translations from the Civil Code which are used hereunder, are based on the translation on the French governmental website: <http://www.legifrance.gouv.fr>. Given the inadequacy of some wordings, there have been some adaptations.

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make a specified use of his land which he would have been entitled to if the land had not been burdened, or the owner of the dominant tenement can make a specified use of the servient tenement which he would not have been entitled to make if the land had not been burdened.

A positive obligation can not be constitutive for a servitude, because that would be a burden on the person of the owner of the servient tenement, not on the servient tenement itself. For instance: an obligation to supply the owner of the servient tenement with certain goods2 or an obligation to construct a building within a certain time-limit3 are incompatible with a servitude. That is also the case for the obligation of the owner who runs a bar in his building to buy beer from the brewery which is the owner of the bar.4 These rights are purely contractual and do not run with the servient tenement, e.g. in case of a sale the new owner will normally not be bound by this obligation.

2. A servitude must be objectively useful to the dominant tenement. In other words, the servitude must be useful to the ownership of the land as such, without taking into account the actual owner.5 A right to hunt or to fish on a neighbouring parcel merely constitutes a personal relationship between neighbours, but not a (real) servitude.6 Such a right is vested in the exclusive interest of the actual owner of the dominant tenement.7

This does not exclude the servitude from being profitable for the current owner personally: the mere fact that the burden grants a personal favour to the owner of the one parcel does not defer its qualification as a servitude if the charge has a direct relationship with the use of the land. It is sufficient that the servitude gave rise to the increased value of the land, and this almost always grants an indirect advantage to the owner of that land.8

2E. Dirix, Obligatoire verhoudingen tussen contractanten en derden, Antwerp, Kluwer, 1984, p. 34, No. 24; L. Lindemans, ‘Erfdienstbaarheden,’ in Algemene Praktische Rechtsverzameling, Brussel, Larcier, No. 140 et seq.

3H. De Page, Traité élémentaire de droit civil belge, Brussel, Bruylant, 1964, VI, p. 402, No. 498.

4Ghent 8 May 1895, Pasicrisie 1895, II, 391; H. De Page, supra note 3, VI, p. 402, No. 498.

5R. Dekkers, Handboek Burgerlijk Recht, Brussel, Bruylant, 1971, I, p. 711, No. 1343; H. De Page, supra note 3, VI, No. 501: ‘La servitude doit présenter de l’utilité pour quiconque sera en droit d’user de tel fonds; elle s’attache à la qualité de propriétaire ;’ R. Derine, F. Van Neste and H. Vandenberghe, ‘Zakenrecht,’ in Beginselen van Belgisch Privaatrecht, Antwerp, Standaard, 1974, IIB, p. 599-600, No. 921C. It is not required that the servitude provides an economic advantage. The advantage can also exist in the more comfortable use of the dominant tenement or in an intellectual advantage. A traditional example is that of the right to maintain the view over the adjacent parcel (H. De Page, supra note 3, VI, No. 496).

6For a more moderated view: B. Bouckaert, ‘Een moderne zingeving voor juridische brocante. De “tragedy of the anti-commons” en de erfdienstbaarheden,’ in K. Bernauw (ed.), Liber amicorum Yvette Merchiers, Bruges, Die Keure, 2002, p. 959, No. 18.

7R. Derine, F. Van Neste and H. Vandenberghe, supra note 5, IIB, No. 922. See also Liège 28 March 1908, Pasicrisie 1908, II, 329.

8Cass. 28 January 2000, Arresten van het Hof van Cassatie 2000, 76 and Revue du notariat belge, 2000, 226, note J. Sace: ‘les termes des articles 637 et 686, alinéa 1er, du Code civil, sur lesquels se fonde le moyen, ne peuvent être pris dans leur sens littéral; que le service foncier profite toujours à des personnes; qu'il y a servitude dès que le service est en rapport direct et immé-

Æ

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The Fragmented System of Land Burdens in French and Belgian Law

We can refer to a recent case which the French Cour de cassation was confronted with: A sells to B a commercial building, and in the purchase agreement it is agreed that B can not start up a bakery, in honour of the memory of mister X, who was a predecessor of A. B re-sold the commercial building afterwards to C, and the prohibition is not repeated in the agreement of re-sale. The Cour de cassation ruled that the prohibition to use the real estate for a specific purpose is of personal nature.9

3. The servient tenement and the dominant tenement belong to different owners. If the servient tenement and the dominant tenement belong to the same owner, the use of the servient tenement is not the expression of a limited property right, but is the mere exercise of the ownership. In that case, there is no servitude. We will not deal with this requirement anymore in the analysis below.

It is not always very obious whether the passive and active side of the land burden comply with the objective nature. There remains a considerable amount of legal uncertainty with regard to the (contractual or proprietary) nature of some clauses, for instance non-competition clauses. These are clauses inserted in the sale of a commercial building which prohibits to the purchaser to use the building for specified commercial purposes. Some consider such a clause to be only useful to the business activities of the current owner, while others recognise an obvious link with the interest of the dominant land itself.10 De Page advocates that the qualification of these clauses must be judged according to the specific circumstances of each case, e.g. whether the clause is objectively usefull for another real estate of the seller. It can only be considered a servitude if, for instance, the dominant tenement is especially equipped for the purpose of the business activities involved.11 The French Cour de Cassation seems more favourable to the proprietary effects of these clauses in recognizing that they can be opposed to the purchaser of the burdened land.12

The fragmentation of French and Belgian property law influences even the structure of this property right. A large number of servitudes can be distinguished, such as rights of passage, building restrictions, prohibitions to commercialize land, prohibitions to affect real estate to a certain destination, etc. A major distinction can

diat avec l'usage et l'exploitation d'un fonds, n'eût-il d'autre effet que d'accroître la commodité de cet usage et de cette exploitation; que, par cette commodité accrue, le service procure au fonds une plus-value et est donc établi pour ce fonds, au sens des dispositions légales précitées.’ See also Cass. 16 May 1952, Pasicrisie 1952, I, 597.

9Cass. fr. 4 July 2001, Bull. civ., III, No. 94, D. 2002, 433, note R. Libchaber, Revue Trimestrielle de Droit Civil, 2002, 125, note T. Revet and J.C.P. 2002, I, No. 126, No. 17, note H. PerinetMarquet: ‘L’interdiction faite à l’acquéreur d’un fonds immobilier de l’affecter à un usage déterminé peut revêtir le caractère d’une obligation personnelle.’

10A personal obligation: Brussels 25 July 1906, Bull. jur. 1906, 1169; Trib. Antwerp 16 June 1922, Pasicrisie 1923, III, 143; Trib. Liège 22 June 1910, Pasicrisie 1910, III, 288; F. Laurent, Principes de droit civil français, Brussels, Paris, Bruylant-Cristophe & Ce Librairie A. Marescq, 1898, VII, No. 146. A servitude: Brussels 29 March 1933, Pasicrisie 1933, II, 189.

11H. De Page, supra note 3, VI, No. 502 et seq.

12Cass. fr. 24 March 1993, Bull. civ., III, No. 45, Revue Trimestrielle de Droit Civil, 1993, 853, note F. Zenati; Cass. fr. 15 July 1987, Bull. civ., IV, No. 184, Dalloz 1988, jur., 360, note C. Atias and C. Mouly, Revue Trimestrielle de Droit Civil, 1989, 351, note F. Zenati.

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be made on the basis of the source of the servitudes: servitudes can come into existence in different ways. They can be contractually agreed upon by the adjacent owners, but they also come into existence by force of law. The Civil Code has contractualized most of the servitudes existing in the feudal regime, but has nevertheless maintained some legal servitudes. Two of the most important legal servitudes are the right of passage and the servitude of ‘views and windows.’

The legal servitude of way is governed by article 682 and further of the French and Belgian Civil Code. An owner whose tenements are enclaved and who has no way out to the public road, or only one which is insufficient either for an agricultural, industrial or commercial purpose of his property, or for carrying out operations of building or development, is entitled to claim on his neighbours’ tenements a way sufficient for the complete purpose of his own tenement (art. 682 C.C.). The owner of the burdened land can appeal for a compensation in proportion to the damage the servitude may cause.

The servitude of views and windows burdens each land, restraining the possibility to have views or windows too close to the borderline with the adjacent parcel. It is prohibited to have windows or views in a common wall (art. 675 C.C.), and views are even restricted in a proper wall: One is not allowed to have straight views or low windows, or balconies or similar access to a view over the neighbour’s property, if there is not a distance of nineteen decimetres between the wall in which they exist and the said property, unless the tenement or the part of the tenement which is the object of the view, is already burdened, for the benefit of the tenement which profits by it, with a servitude of way which prevents the erecting of constructions. One may not even have side or oblique views on the same property, unless there is a distance of six decimetres (art. 678-679 C.C.). The reason behind these legal land burdens are obvious: to avoid that the privacy of the neighbour can be violated or that quarrels between neighbours are concluded in physical ways by throwing things from one parcel to another.

In exercising the servitude, the owner of the dominant tenement must take into account different restrictions. The most important is the restriction that he may only use the servitude in accordance with his instrument of title, without being allowed to make, either on the tenement which owes the servitude, or on the tenement to which it is due, any change which would render the condition of the former more burdensome (art. 702 C.C.). This provision contains two obligations: (1) the owner of the dominant tenement may not make a use of the servitude which goes beyond the contractual or legal restriction of the servitude and (2) even if the borders of the servitude are respected, the owner of the dominant tenement may not enhance or change the servitude in such way that he deteriorates the position of the owner of the servient tenement. The classic example is that of a pass way which was constituted to be used for family purposes, and which is now used by tourists because the owner of the dominant tenement has decided to start up camping facilities on his land.

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The Fragmented System of Land Burdens in French and Belgian Law

2.2.Long Lease

The long lease (‘emphyteusis’) is the most general property right a non-owner can have on an immovable asset. Long lease is defined by the Belgian legislator as the ‘property right to have the full enjoyment of a real estate belonging to someone else, under the obligation to pay to the latter an annual compensation in money or in proceeds or fruits.’ Both French and Belgian statutory law emphasize the proprietary nature of the long lease rights. It grants to the long leaseholder a general right to use an immovable asset for a long period. He is merely subject to one restriction: he may not diminish the value of the real estate. The long leaseholder is not obliged to maintain the destination to which the real estate was affected by the ground owner. The long leaseholder can erect buildings on the real estate, without any restriction.13

Long leases have been created in Roman law, where they enabled the leaseholder to farm extensive lands which the owner would otherwise have left fallow. The occupation of the land was favourable both to the leaseholder, who could ensure an income of land farming, and to the owner, who could upgrade the value of his immovable assets.

The Codification Commission of the Civil Code did not recognize the long leasehold as a type of property right. The underlying idea was that this property right, because of its long duration and extensiveness, created a burden which risked to erode the land ownership.

This property right was re-introduced in French law only in the Rural Code of 25 June 1902. Nowadays, the statutory provisions on long leasehold can be found in L-451-1 to 451-13 of the Rural Code. However, French case law has never ceased to recognize this property right, even in the period that the statute remained silent on this issue.

As far as Belgian law is concerned, the long lease right was re-introduced in 1824, when Belgium was part of the Dutch Kingdom. The Act of 10 January 1824 provides for statutory rules with regard to the long lease. This Act has remained unamended since 1824, even if the economic development of long lease has been very fast and radical during the last decades. Long lease has for a long time been rather anonymous for the real estate practitioners, but this has been a frequent instrument in real estate commercialization during the last decades of the 20th century.

Contrary to more modern Codes (e.g. Dutch Civil Code), long leaseholds are restricted in time. In French law, a long lease agreement has a minimum duration of 18 years and a maximum duration of 99 years, in Belgium law the duration must be between 27 years and 99 years. This long duration has its historical background in the Roman period, in which it was meant to ensure the use of the land for a long period (cf. supra). A renewal is possible, but can only be agreed upon at the end of the initial term.

13Normally, the long leaseholder will not be entitled to any compensation at the end of the long lease for the surplus value, but parties can agree in another way.

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In the last decades, long leasehold agreements have been subject to a revival. They have become fairly common in Belgian and French business practice because they are frequently used in leasing operations with regard to immovable assets. Moreover, it is common that public authorities realize projects of public interests in co-operation with private partners, for instance sports infrastructure, concert halls, parking spaces, etc. It is not unusual that the public partner grants to the private partner the free use for a long term of grounds belonging to the public partner, and stipulates that the private partner must build public infrastructure which must comply with certain conditions of public interest.

The economic attractiveness of long leaseholds is caused by the flexibility of these rights. The parties have been awarded very large freedom to model a long lease agreement. The only two requirements they have to comply with, are the limitations with regard to the duration, and the obligation to agree upon a compensation. Other requirements are not set out, but parties can however not denature the rights of a long leaseholder. If the rights which have been installed, do not meet the essential characteristics of a long lease, the judge can – in spite of the qualification as long lease – give another qualification to the agreement

2.3.Building Rights

Another way to burden real estate with property rights, is the creation of a building right (‘superficies’). A building right creates a splitting up of the ownership of immovables in horizontal perspective. A building right is the right to have buildings, works or plants on the land of another.14 The ownership of the land is separated from the ownership of the buildings. In other words, building rights deprive the land owner of the ‘immovable accession.’ The creation of a building right is a contractual deviation from the ‘superficies solo cedit’ rule.

In French law, there are no specific statutory rules with regard to building rights. The recognition of building rights can be found implicitly in article 553 of the Civil Code.15 This provision states that ‘all constructions, plantings and works on or inside a piece of land are presumed made by the owner, at his expenses and belonging to him, unless the contrary is proved.’ The reversibility of the presumption would be the ground for the existence of building rights.

In Belgian law, the legislator has enacted specific statutory rules with regard to building rights in the Act of 10 January 1824.16 Except for the duration of the building right, all the provisions of this Act are of supplementary law. Parties can deviate contractually, and they often make use of this possibility. This is one of the reasons for the revival of building rights in the last decades.

A major difference between French and Belgian law exists with regard to the duration of building rights. Belgian law takes a strict starting point. Building rights

14This is the definition of art. 1 of the Belgian Act with regard to building rights. See, in French law: M. Planiol and G. Ripert, Traité pratique de droit civil français, Parijs, L.G.D.J., 1952-1960, III, p. 314, No. 330.

15C. Larroumet, Droit civil. Les biens, Paris, Economica, 1995, p. 432, No. 754.

16Official Gazette of the Duch Kingdom, 1824, No. 13.

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can only be constituted for a maximum period of 50 years. If the holder of the building right does not exercise his powers conferred to him, his right will come to an end through prescription after 30 years. French case law allows the constitution of building rights far beyond the time limits imposed by Belgian law. It is possible to constitute, according to French law, a perpetual horizontal splitting up of a building right. Immovable accession to the ground is excluded eternally for the future.17 Moreover, the building rights can not come to an end due to non-use. In other words, extinctive prescription is excluded.18 Even if the holder of the building right does not exercise that right for more than 30 years, the right will persist. The fact that the right has become useless or economically harmful, is not taken into account.19

The distinction between Belgian and French law is remarkable. It can be attributed to the different way in which the building rights have been re-introduced in French and Belgian law. In Belgian law, building rights have been enacted by the 1824 Statute, in which the Revolutionary ideas and emphasis on the indivisibility of ownership is still reflected. French law, on the other hand, has come to the recognition of building rights in a more organic way by case law.

There is a theoretical discussion going on in French law with regard to the question whether a building right can be seen as a ‘land burden.’ Some scholars argue that there is no land burden, as the holder of the building right and the owner of land are to be considered as different full owners with regard to a different object.20 Whatever may be the result of the debate, it cannot be denied that factually the building right restricts the powers of the land owner and burdens the land. Therefore, it must be considered, economically speaking, as a land burden.

According to Belgian law, each derogation to the principle of accession is to be considered as the constitution of a building right. The Belgian Supreme Court has ruled that each waiver of accession by the land owner creates a building right. Leaving aside the tax consequences, this case law has as its main result the fact that the waiver of accession by the land owner is also subject to the upper limit of 50 years.21 In this way, Belgian case law has aimed to protect the legal and physical indivisibility of ownership. This strict time constraint is the basis for a large amount of problems for real estate practitioners because it makes it impossible to create different investment schemes for different horizontal shelves of a same parcel of land. If a supermarket is built in the underground under a complex of apartment buildings, it is rather uncertain whether accession will not apply after 50 years. This situation is disadvantageous for both the owner of the underground and the owner(s) of the apartments.

17C. Larroumet, supra note 15, p. 439, No. 762.

18Req. 27 April 1891, Sirey 1891, 1369, note Labbe, Dalloz 1892, I, 219. Cf. Cass. fr. 16 December 1873, Dalloz 1874, I, 249 and Sirey 1874, I, 457, note J. Labbe.

19We will see that French law lacks generally for sensitivity for the restriction or termination of harmful or useless land burdens (cf. infra, 4.1 and further).

20C. Larroumet, supra note 17, p. 429, No. 751.

21Cass. 19 May 1988, Pasicrisie 1988, I, 1142, Rechtskundig Weekblad 1988-89, 572.

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