Chapter 2 Content of Right of Superficies

§ 247. Exercise of rights of superficiaries

(1)

A superficiary shall not violate the rights of the owner of the encumbered immovable in the exercise of the superficiary's rights.

(2)

A superficiary shall ensure the preservation of the construction unless otherwise agreed by the superficiary and the owner of the immovable.

§ 248. Prohibition of restriction of right of superficies

(1)

A right of superficies shall not be restricted by conditions which are contrary to the nature of the lease.

(2)

The owner of an immovable shall not rely on an agreement whereby a superficiary undertakes, under certain conditions, to relinquish the right of superficies and permit its premature deletion from the land register.

§ 249. Disposal of right of superficies

(1)

A superficiary has the right to transfer or bequeath a right of superficies or to encumber it with real security, a servitude, a real encumbrance or a right of pre-emption.

(11)

The consent of the owner is required for transfer of a right of superficies if such condition is entered in the land register. The owner may also establish, as a condition for the grant of consent, that all agreements under the law of obligations entered into between the owner and the superficiary are assumed by the acquirer of the right of superficies.
(17.02.99 entered into force 01.04.99 - RT I 1999, 27, 380)

(2)

The consent of the owner is required for encumbrance of a right of superficies with a real right if such condition is entered in the land register.

(3)

(Repealed -17.02.99 entered into force 01.04.99 - RT I 1999, 27, 380)

(4)

Upon extinguishment of a right of superficies, the real rights established on the right of superficies also extinguish.

§ 2491. Granting consent

(1)

If in the case provided for in subsection 249 (11) it may be presumed that the objective sought by the constitution of the right of superficies is not essentially changed or endangered and that the acquirer ensures proper performance of the obligations arising from the content of the right of superficies, the superficiary may demand that the owner grant consent for the transfer of the right of superficies.

(2)

If in the case provided for in subsection 249 (2) it may be presumed that the encumbrance may be integrated with regular management and that the objective sought by the constitution of the right of superficies is not essentially changed or endangered, the superficiary may demand that the owner grant consent for the encumbrance of the right of superficies.

(3)

If the owner refuses to grant the consent specified in subsection (1) or (2) of this section without adequate reason, the superficiary has the right to file an action against the owner to seek the grant of consent.
(17.02.99 entered into force 01.04.99 - RT I 1999, 27, 380)

§ 250. Ranking of right of superficies

A right of superficies may only be constituted with a first ranking in the land register and the ranking shall not be subsequently changed.

§ 251. Term of right of superficies

(1)

A right of superficies may only be constituted for a certain term but for not less than 36 and not more than 99 years.

(2)

If the specified term is less than 36 years, the term shall be deemed to be 36 years. If the term is unspecified or more than 99 years, the term shall be deemed to be 99 years.

(3)

Upon the end of term, the owner of an immovable and the superficiary may extend the right of superficies by agreement but for not more than 99 years. Extension of the right of superficies shall be entered in the land register.

§ 252. Fate of construction upon end of term of right of superficies

(1)

A superficiary has the right to remove the lessee's construction within one year before the end of term of the right of superficies unless the owner of the immovable uses the right specified in subsection (3) of this section. If the owner of the immovable presents a demand for removal not later than four months before the end of term, the superficiary is required to do so.

(2)

A construction which is not removed by the end of term becomes an essential part of the immovable and transfers into the ownership of the owner of the immovable. If the owner of the immovable presents a demand for removal in time, the owner of the immovable may demand payment for removal of the construction from the superficiary if the owner of the construction removes it within one year after the end of term.

(3)

The owner of an immovable has the right to demand, not later than one year before the end of term, that the construction be left to the owner of the immovable for payment equal to the damage arising to the superficiary from the loss of the right of removal specified in subsection (1) of this section.

(4)

The provisions of subsections (1)-(3) of this section are valid insofar as the entry in the land register does not specify otherwise.

§ 253. Compensation upon end of term of right of superficies

(1)

Upon constitution of a right of superficies, payment of compensation to the superficiary by the owner of the immovable may be prescribed for a construction left to the owner of the immovable at the end of term. The owner of the immovable is exempted from payment of compensation if the owner of the immovable extends the term of the right of superficies to the end of the period of the presumed life of the construction.

(2)

If the superficiary does not consent to extension of the term, the superficiary loses the right to compensation.

§ 254. Payment for right of superficies

(1)

A superficiary shall make a payment for the right of superficies to the owner of the immovable unless otherwise agreed.

(2)

The payment for a right of superficies shall be made according to an agreement in money or other fungible things such that upon constitution of the right of superficies, the amount of payment or the bases for calculation of the amount of payment may be specified in advance for the whole term of the right of superficies.
(17.02.99 entered into force 01.04.99 - RT I 1999, 27, 380)

(3)

A change in the amount of payment payable for a right of superficies according to changing conditions may be agreed to upon the constitution of the right of superficies if the time and extent of change of the conditions can be determined.
(17.02.99 entered into force 01.04.99 - RT I 1999, 27, 380)

(4)

The payment obligation for a right of superficies may be entered in the land register as a real encumbrance.

(41)

The consent of the lower ranking owners in the land register is required for the change of a real encumbrance established to secure the right of superficies payment due to a change in the amount of payment payable for the right of superficies pursuant to subsection (3) of this section only if the increase in the payment significantly exceeds the change of the conditions.
(17.02.99 entered into force 01.04.99 - RT I 1999, 27, 380)

(42)

It may be agreed concerning the right of superficies payment that:

1)

differently from the provisions of subsection 6420 (1) of the Code of Enforcement Procedure
(RT I 1993, 49, 693; 1997, 43/44, 723; 1998, 41/42, 625; 51, 756; 61, 981; 103, 1695; 1999, 18, 302; 27, 380), the real encumbrance established to secure payment shall be preserved if the owner on the basis of a real encumbrance or another person with a restricted real right of a higher or same ranking claims payment for the right of superficies;

2)

the actual superficiary has the right with regard to the actual owner of the real encumbrance to encumber the right of superficies with a mortgage of a determined extent of the same or higher ranking.
(17.02.99 entered into force 01.04.99 - RT I 1999, 27, 380)

(43)

If a right of superficies is encumbered with a restricted real right of the same ranking with the real encumbrance established to secure the right of superficies payment, the consent of the person for whose benefit the restricted real right is established is required for entry in the land register of the mortgage specified in clause (42) 2) of this section.
(17.02.99 entered into force 01.04.99 - RT I 1999, 27, 380)

(5)

If a superficiary has not made a payment for the right of superficies for three consecutive years, the owner of the plot of land may demand sale of the right of superficies by compulsory auction. The owner of the plot of land may also participate in the auction.

(6)

The co-owners of a right of superficies are solidarily liable for the right of superficies payment.

§ 255. Taxes and encumbrances

All taxes incumbent on a plot of land encumbered with a right of superficies shall be paid and real encumbrances in public law shall be borne by the superficiary.

§ 2551. Agreements

The content of the right of superficies also includes the agreements between the owner and superficiary concerning:

1)

the construction, maintenance and use of a construction;

2)

the insurance of a construction and its reconstruction in the case of its destruction;

3)

the obligation of the superficiary to pay contractual penalties;

4)

the obligation of the superficiary to transfer, upon the arrival of a corresponding prerequisite, the right of superficies to the owner;

5)

the compensation to be paid to the superficiary for the construction upon the extinguishment of the right of superficies or upon the reversion of the right of superficies.
(17.02.99 entered into force 01.04.99 - RT I 1999, 27, 380)

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