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Published online by Cambridge University Press: 26 May 2022
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.
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