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 " the right of use gives the right to receive from the fruits of another's property those that are sufficient for the needs of the user and his family , even if the family grows larger," while "the right of habitation gives the person who has this right the power to occupy in another's house the rooms necessary 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 the 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), allowing them to obtain its fruits or income, in the case of a right of habitation and a right of use, the holder must limit themselves to enjoying the accommodation or receiving the fruits insofar as they satisfy the needs of the holder and their family . For example, in the first case, the holder could rent out the usufructed dwelling to collect rent, which is not possible in the case of a right of habitation.
Similarities and differences
In general terms, the right of habitation and the right of use share the following characteristics :
- These are real rights .
- They are constituted through a unilateral or bilateral legal transaction , inter vivos or mortis causa, for valuable consideration or gratuitously.
- These are rights of use , that is, directed to the use and enjoyment of a property by its owner.
- They are limited to the needs of the holder and their family.
- They are of a personal nature .
- There is a temporary nature to the use and the room.
- They are non-transferable , meaning these rights cannot be leased or transferred to another party under any circumstances, and therefore cannot be mortgaged or seized.
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 can apply to movable or immovable property , the right of habitation is exclusively linked to immovable property.
- The right of habitation is limited to natural persons , but the use can 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 in the case of the holder of the right of habitation, he only enjoys accommodation in the dwelling.
Application of the right of habitation and use
In practical terms, the right of habitation is very common in inheritance law , as a legal mechanism to protect the housing needs of certain individuals. It is often used, for example, by parents on behalf of a child who has difficulty managing their own life, allowing the child to continue living in the home without losing it, even after the parents' death.
Another paradigmatic example of the right of habitation occurs in cases of debt or business risks . In this way, a citizen transfers their home to a family member, reserving the right of habitation over it, so the property will not be affected by potential seizures.
From a tax perspective, this can also be used in cases where a family helps their child buy a home but wishes to retain certain rights over it. While in the case of usufruct, the child enjoys ownership and actual use of the property, and therefore the parents cannot deduct the purchase on their income tax return , with the right of habitation, the acquisition can be deducted from personal income tax.
For its part, the right of use is common in the field of livestock or agricultural operations , when a third party is allowed to take advantage of the fruits for their personal consumption and that of their family, and in real estate , with transfers of rights of use of a premises to set up a company, for example.
