Edition 2020 Ninth edition
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a6048c931cdc93 TEGOVA EVS 2020 digital
2.2.3.5.
The condition that the agreement should be concluded for an agreed period is interpreted rather broadly. It is not necessary that the period of the lease be fixed at the time the contract is concluded. Consequently, 346 VII. European Union Legislation and Property Valuation European Valuation Standards 2020 granting a license to several businesses to share premises, with no set duration and a rent partly linked to the passage of time may be considered to be a lease (judgment in the case C 284/03, Temco Europe). However, as a general rule, the agreement may not be occasional and temporary (judgments in the cases C 55/14, Régie communale autonome du stade Luc Varenne and C 532/11, Leichenich). 2.2.3.6. A lease transaction in the meaning of the Directive also implies that the lessee has the exclusive right to occupy the property as if it was the owner. An agreement which grants only limited rights of possession or control on the immovable property concerned should therefore not be consid- ered as a leasing agreement (see, to that effect, the judgment in the case C-275/01, Sinclair Collins). On the other hand, the mere fact that the tenant does not have the right to make changes to the property does not pre- clude an agreement from being qualified as a lease agreement (judgment in the case C-278/18, Sequeira Mesquita). As regards the exclusive nature of the tenant's right to occupy the property, it has been clarified that a re- striction to this right does not preclude the occupation from being exclu- sive as regards all other persons not permitted to exercise a right over the property in question. A lease could therefore also relate to transactions where certain parts of a property must be used in common with other occupiers (judgment in the case C-284/03, Temco Europe). The same holds true where the property is occasionally occupied by another when the lessee is not using it for himself. For instance, by judgment of 3 March 2005 the CJEU ruled that the lease of (mooring) berths for boats fell within the scope of the exemption for leasing even though the berths were oc- casionally used by others when the lessee's boat was away (judgment in the case C-428/02, Fonden Marselisborg Lystbådehavn). In a more recent judgment, the CJEU ruled that an agreement whereby the owner grants a fishing club the right to fish in its ponds does not fulfil the condition of ex- clusivity if the owner reserves the right to fish in those waters for himself or one guest per day (authorised by the owner) (judgment in the case C 451/06, Walderdorff). Download 1.74 Mb. Do'stlaringiz bilan baham: |
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