SUMMARY OF THE ARTICLE
1.- What is the right of habitation.
It is a limited real right, governed by arts. 523 to 529 of the Civil Code. It allows its holder to occupy the rooms necessary in another person’s property for themselves and their family. It is strictly personal: it cannot be transferred, sold or let.
2.- How it differs from usufruct.
Usufruct grants full use and enjoyment of the property. The right of habitation is more restricted. And it allows the owner to retain the possibility of continuing to use part of the property. Furthermore, it cannot be claimed by third parties.
3.- Why it can be a very interesting alternative.
It allows the use of a property to be granted to a partner or family member without the risk of forced heirs claiming it as part of their legitimate share. It can be configured over the entire property or just part of it, and on a lifetime or fixed-term basis. To establish it, a public deed and registration at the Land Registry are required.
At our firm we frequently receive enquiries from people who wish to ensure that their partner, a family member or a trusted person can continue living in their property. Or in part of their property, but without giving up ownership. Generally, in these cases the first thing that comes to mind is usufruct. However, there is a legal concept that is often overlooked. The right of habitation. A flexible and secure alternative that allows claims from heirs to be limited whilst retaining full ownership.
What is the Right of Habitation?.
It is a real right governed by articles 523 to 529 of the Spanish Civil Code. It allows its holder to occupy the rooms necessary in another person’s property for themselves and the members of their family. Furthermore, it is a strictly personal right. That is to say, it cannot be transferred, sold or let to third parties.
Art. 524 C.C. “The right of habitation grants its holder the faculty to occupy in another’s house the rooms necessary for themselves and the members of their family.”
How does it differ from Usufruct?.
Usufruct grants the beneficiary full use and enjoyment of the property. The right of habitation is more restricted, as it only allows occupation of the rooms necessary for living. However, that very restriction can be an advantage. For example, it allows the owner to retain the possibility of continuing to use part of the property, something that is not always possible with usufruct. Furthermore, it is non-transferable and cannot be inherited or claimed by third parties.
Why can the “Right of Habitation” be a very interesting alternative?.
Let us imagine that you wish to ensure that your partner can live in your property after your death, or even during your lifetime. If you establish a usufruct in favour of your partner, and the estate is of limited value, the forced heirs could argue that the usufruct granted diminishes their legitimate share. And claim it through the courts. With the right of habitation, being a strictly personal and non-transferable right, such a claim is not possible. It is, therefore, a particularly useful arrangement for protecting common-law partners, second partners or family members in situations where usufruct could give rise to succession disputes.
Furthermore, it can be configured in a very flexible manner. It can apply to the entire property or only to a specific part: a floor, a bedroom, a defined area. And it can be established on a lifetime basis or for a fixed term: five years, until a specific circumstance arises, and so forth.
How is the right of habitation established?.
To establish it, it is necessary to execute a public deed before a Notary and register it at the Land Registry. This is a straightforward step, but an essential one to ensure that the right is properly protected against third parties.
Conclusion.
The right of habitation is a tool for estate planning that deserves more attention than it typically receives. At White & Baos Lawyers we are experts in civil law and estate planning. If you wish to protect your partner or a family member, and to do so in a legal, secure and tailored manner, please do not hesitate to contact us.
The information provided in this article is not intended to be legal advice but merely conveys information relating to legal issues.
Carlos Baos (Lawyer)
White & Baos.
Tel: +34 966 426 185
E-mail: info@white-baos.com
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