Skip to main content Accessibility help
×
Hostname: page-component-6b989bf9dc-wj8jn Total loading time: 0 Render date: 2024-04-13T14:12:36.784Z Has data issue: false hasContentIssue false

Comparative Analysis – Case 7

Published online by Cambridge University Press:  26 May 2022

Björn Hoops
Affiliation:
University of Groningen, The Netherlands
Ernst J. Marais
Affiliation:
University of Johannesburg
Get access

Summary

GENERAL INTRODUCTORY REMARKS ON VARIATION 7.1.

The law in all jurisdictions converges on one point. A tenant or another person who uses land according to an agreement with the owner will never qualify for an acquisition of that land through long-term use. However, what would happen if the tenant stopped paying the rent and continued to use the land? This is the problem addressed by Variation 7.1. with the tenant, Olaf, as its main character. Regarding the jurisdictions that allow for acquisitions by users who intentionally use land unlawfully, there is considerable divergence between these jurisdictions as to what the tenant who stops paying rent needs to do to qualify for an acquisition through long-term use.

COMPARATIVE REMARKS

The jurisdictions can be divided into four groups.

(1) NO ACQUISITION BECAUSE OLAF IS AN INTENTIONAL OCCUPIER

The first group of jurisdictions do not permit intentional occupiers to acquire land through long-term use. In these jurisdictions the conditions under which a tenant stopped paying rent could qualify for an acquisition through long-term use are thus irrelevant. This group consists of England and Wales under the Land Registration Act of 2002, Finland, Germany, Norway, Russia, Scotland, Slovakia, and Sweden.

(2) NO ACQUISITION WITHOUT TERMINATION OF THE TENANCY AGREEMENT

Alberta and Ireland require that the tenancy agreement first be terminated. To stop paying rent will not result in the termination of the agreement in these jurisdictions. In these jurisdictions, the tenant thus never starts to use the land unlawfully. Olaf will therefore not be successful in these jurisdictions.

NO ACQUISITION WITHOUT AN UNEQUIVOCAL INDICATION OF THE TENANT‘S INTENTION TO ACT AS OWNER

One group, consisting of the mixed jurisdictions Louisiana and South Africa and the civil-law jurisdictions Belgium, Catalonia, France, Italy, the Netherlands, Poland, and Spain, require an unequivocal indication to the landlord that the tenant intends to use the land to the exclusion of the landlord. The reasoning behind this requirement is that it needs to be clear to the landlord that the tenant wishes to use the land to his own benefit so that the landlord can take action against Olaf’s unlawful use. To stop paying rent is no sufficient notice.

Type
Chapter
Information
Publisher: Intersentia
Print publication year: 2022

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Save book to Kindle

To save this book to your Kindle, first ensure coreplatform@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×