What is the right of habitation? And the right of use?

Spanish legislation provides for different legal concepts that grant citizens a certain flexibility regarding the rights of bare ownership, possession, use and enjoyment of a property, dividing the ownership of each one among different people. Within this group are the right of habitation and the right of use. What do they consist of?

Although they are very similar real rights and are related to usufruct, there are slight differences between them. At Hipotecas.com we explain what each of them entails .

The right of habitation and use

The right of habitation and the right of use are regulated in articles 523 to 529 of the Civil Code . Specifically, article 524 establishes that “ use gives the right to receive from the fruits of another's property those that suffice for the needs of the user and his family , even if the latter increases”, while “ habitation gives the person who has this right the power to occupy in another's house the necessary rooms for himself and for the members of his family ”.

It is, therefore, a type of restricted usufruct ; in fact, the right of habitation and use will be governed by the regulations applicable to usufruct in terms not specifically included in the Civil Code and not contemplated in the constitutive title.

Thus, while the usufructuary has full enjoyment of the property (movable or immovable), which allows him to obtain its fruits or returns, in the right of habitation and in the right of use, the owner must limit himself to the enjoyment of the accommodation or the receipt of the fruits insofar as they satisfy the needs of the owner and his family . For example, in the first case, the owner could rent the usufructed dwelling to receive the rent, which cannot be done in the case of constituting a right of habitation.

Similarities and differences

In general terms, the right of habitation and use share the following characteristics :

1. These are real rights .
2. They are established through a unilateral or bilateral legal transaction , inter vivos or mortis causa, for a fee or free of charge.
3. They are rights of use , that is, directed at the use and enjoyment of a good by its owner.
4. They are limited to the needs of the holder and his family.
5. They are of a personal nature .
6. There is a temporality in use and habitation.
7. They are non-transferable , that is, these rights cannot be leased or transferred to another person under any title, and therefore cannot be mortgaged or seized.

In this sense, when buying a home, it is important to check in the Property Registry that the property does not have any encumbrances of this type , since it may be the case of acquiring a house that has a right of habitation towards a third party, who will be the one who lives there.

However, although they are closely related, the right of habitation and the right of use are distinct concepts that present the following differences :

• While the right of use may apply to movable or immovable property , the right of habitation is linked exclusively to real estate.
• The right of habitation is limited to natural persons , but use may also be exercised by legal persons.
• The holder of the right of use can enjoy the fruits and benefits of a thing , that is, it is like a restricted usufruct, while the holder of the right of use only enjoys accommodation in the home.

Application of the right of habitation and use

In practical terms, the right of habitation is very present in the area of inheritance , as a legal form to protect the housing needs of certain people. It is often used, for example, by parents towards a child who has difficulties in coping in life, so that the right of habitation allows him to enjoy the home without it being taken away from him, even after the death of the parents.

Another paradigmatic case of the right of habitation occurs in cases of debts or business risks . In this way, a citizen transfers the home to a family member, reserving the right of habitation over it, so that the property will not be affected by possible seizures.

At a tax level, it can also be used in cases where a family helps their child to buy a home, but wants to maintain certain rights over it. While in the case of usufruct, the child enjoyed the ownership and actual use of the property and, therefore, the parents could not deduct the purchase from their Income Tax , with the right of habitation, the acquisition can be deducted from the Personal Income Tax .

The right of use is common in the field of livestock or agricultural farms , when a third party is allowed to use the fruits for personal consumption and that of his family, and in real estate , with transfers of rights to use a premises to set up a company, for example.