Right of Habitation Lawyer | Ziamparas Law Firm

Q: How is the right of habitation properly established?

Establishment is mandatorily by notarial deed, registered at the Land Registry or recorded at the National Land Registry. Without these formalities, the right is not protected against third parties. It may be established by parental gift, donation, sale with retention of habitation, will, donatio mortis causa or acquisitive prescription. The scope of use and the obligations of the parties must be clearly defined.

Q: How am I protected if my use is being obstructed?

You have a vindicatory action for restoration of use, a negatory action for cessation of disturbances, and a Publician action where title is not fully proven. There is also an action for the protection of quasi-possession of the servitude and, in urgent cases, interim measures of possession before the Single-Member Court of First Instance. Damages are awarded for deterioration caused by the owner or a third party. Timely action is important.

Q: When is the right of habitation lost?

It is extinguished by death or declared absence of the beneficiary, by merger when they acquire ownership, by total destruction of the building, by compulsory expropriation, by fulfilment of a resolutive condition or expiry of a resolutive time-limit. Waiver is made by notarial deed, served on the owner and registered. Prolonged non-use or absolute impossibility of exercise also lead to extinction.

Q: What documents do I need to safeguard the right?

Required are the title deed, Land Registry or National Land Registry certificates, topographic diagram, electronic property identity, ENFIA certificate, tax clearance of the grantor, identity details and VAT number (AFM). For parental gifts or donations, a tax declaration with the objective value of the right of habitation is also submitted. In protective proceedings, the deed of establishment, evidence of use, photographs and witnesses are produced.

Q: What is the role of the lawyer in habitation cases?

The firm designs the structure of the contract to protect the beneficiary, checks titles and encumbrances, coordinates with the notary and ensures registration or cadastral recording. In disputes it brings actions and interim measures and represents the client before the civil courts. ZIAMPARAS D. & ASSOCIATES has experience in real rights and parental gifts with retention of habitation.

What is the right of habitation?

Habitation, under the Civil Code (AK), is the real and exclusive right of the holder to use as a residence a building or apartment owned by another. Although it resembles usufruct over real property, it has notable differences. It is a limited real right, strictly personal, non-transferable, non-inheritable, and indivisible as to its exercise.

The servitude of habitation may be either full or limited. Full habitation exists when the beneficiary’s authority excludes that of the owner and when it is established over a building or apartment exclusively for residential use. By contrast, where co-habitation is provided for, or where the right is restricted to certain time periods without excluding the owner’s right to reside in the same space during the remaining intervals, or where the right is established for professional premises, the right amounts to a limited personal servitude. However, mixed use cannot be excluded provided that the professional use is of a secondary nature and does not conflict with prevailing commercial standards.

How is the right of habitation established?

Habitation is established by inter vivos legal act, that is, by contract between the owner (granting the right of habitation) and the beneficiary of habitation (parental gift, donation), and in the case of a sale, between the transferring and acquiring owner and the beneficiary of habitation (‘transfer with retention of lifetime habitation’). The contract must mandatorily take the form of a notarial deed and be registered or recorded in the cadastral folio of the property in areas where a cadastral office operates.

It may also be established by will or by donation in contemplation of death (donatio mortis causa), or by ordinary or extraordinary acquisitive prescription.

When is the right of habitation extinguished?

Habitation, like usufruct, is extinguished when, due to factual or legal reasons, its exercise becomes absolutely, definitively and continuously impossible without any prospect of returning to the previous state.

Accordingly, it is extinguished by reason of the death or declared absence of the beneficiary; by merger of rights (when ownership devolves upon the beneficiary); by waiver, which must mandatorily be made by notarial deed, served on the owner and registered; by destruction of the building or apartment; by impossibility of exercise; by non-use; by fulfilment of a resolutive condition; by expiry of a resolutive time-limit; or by compulsory expropriation.

What are the rights and obligations of the beneficiary of habitation?

The beneficiary of habitation has the same powers as a usufructuary, save for the collection of fruits and benefits (e.g. rent from the property) and the power to transfer the right. The authority granted by habitation is a power of use, not of every form of use, but only of use as a residence.

The beneficiary of habitation has the following obligations: to treat the property with diligence; to carry out ordinary maintenance; to notify the owner so that extraordinary events that damage or threaten to damage the property may be addressed; to pay the necessary expenses and costs of use and the regular public charges; to participate in common matters where the habitation concerns an apartment subject to the provisions on horizontal property (condominium); to tolerate expert inspections; and to return the building or apartment.

Culpable failure by the beneficiary of habitation to carry out ordinary maintenance of the property entails liability towards the owner of the property to pay damages, initially on the basis of contractual liability and, if it results in deterioration of the property, also on the basis of tortious liability.

How is the beneficiary of habitation protected against infringements of the right?

The beneficiary of habitation may be protected by exercising the legal remedies available (vindicatory action, negatory action, Publician action, as well as an action for the protection of the quasi-possession of the servitude and interim measures concerning possession).

Is the right of habitation at risk of seizure?

Given that habitation is always non-transferable, it cannot be the object of seizure under the procedure of enforcement against immovables, nor can it be the object of a mortgage.

See also article Property Purchase
See also article Property Sale
See also article Fraud Against Property Buyers by Sellers
See also article Action for Partition of Property
See also article SYPOTHA – Unauthorized Construction
See also article Fines for Unauthorized Construction
See also article Annulment of SYPOTHA Decision
See also article Acquisitive Prescription
See also article What is the KAEK?
See also article Prenotation of Mortgage
See also article Eviction of Tenant
See also article Professional and Commercial Leases
See also article Correction of Manifest Error – Unknown Owner – Cadastre

FREQUENTLY ASKED QUESTIONS ON THE RIGHT OF HABITATION – LAWYER

1. What exactly does the right of habitation secure for me?

Habitation is a real and exclusive right to use as a residence a building or apartment owned by another, without being the owner of the property. It is a common method of protecting elderly parents who transfer the property to their children by way of parental gift or donation, while retaining lifetime habitation. The right is strictly personal, non-transferable, non-inheritable and indivisible. It cannot be seized nor encumbered with a mortgage, so it offers significant security even if the new owner faces financial difficulties. As a rule, full habitation excludes the owner from use, while limited habitation permits co-habitation or partial use in accordance with what has been agreed.

2. How is the right of habitation properly established?

The establishment is mandatorily made by notarial deed, which must be registered with the competent Land Registry or recorded in the cadastral folio of the property. Without these formal requirements, the right does not produce real effects and is not protected against third parties. The establishment may take place by inter vivos legal act (parental gift, donation, contract of sale with retention of habitation), by will, by donation in contemplation of death (donatio mortis causa), or even by ordinary or extraordinary acquisitive prescription. It is crucial to define precisely the scope of use (full or limited), the maintenance terms and the other obligations, in order to avoid subsequent friction with the owner.

3. How am I protected if my use is being obstructed?

If the owner or a third party obstructs your residence, disputes the right or engages in nuisance acts, you have strong legal protection. A vindicatory action may be brought for the restoration of use, a negatory action for the cessation of disturbances, and a Publician action where title is not fully proven. Alongside these, there is an action for the protection of the quasi-possession of the servitude and, in urgent cases, interim measures concerning possession, which are issued promptly by the Single-Member Court of First Instance. Where deterioration arises through the fault of the owner or a third party, damages are also awarded. Timely action is important, as prolonged tolerance of infringements may create evidential problems.

4. When is the right of habitation lost?

Habitation is extinguished by the death or declared absence of the beneficiary, since it is not transferred to the heirs. It is also lost by merger, when ownership of the property devolves upon the beneficiary; by total destruction of the building; by compulsory expropriation; by fulfilment of a resolutive condition; or by expiry of a resolutive time-limit set out in the title. Waiver is permitted, but must mandatorily be made by notarial deed, served on the owner and registered. Furthermore, prolonged non-use or absolute and continuous impossibility of exercise lead to extinction. In any event, the beneficiary or the beneficiary’s heirs are required to return the property to the owner in the condition provided for by law and contract.

5. What documents do I need to safeguard the right?

You will need the title deed of the property, certificates from the Land Registry or the National Land Registry (ownership, encumbrances, no-claims), a topographic diagram, the electronic property identity number, an ENFIA certificate, tax and social security clearance of the grantor, as well as the identity documents and VAT number (AFM) of the parties. Where the establishment is by parental gift or donation, a tax declaration is also required, calculated on the basis of the objective value of the right of habitation, which is reduced according to the age of the beneficiary. In protective proceedings, the deed of establishment, evidence of use (utility bills, correspondence), photographic material and witnesses familiar with the condition of the property are produced.

6. What is the role of the lawyer in habitation cases?

The law firm designs the structure of the contract from the outset, so that the beneficiary is protected and the limits of use, the maintenance obligations and the terms in case of co-habitation are clearly set out. It checks the titles and encumbrances of the property, coordinates with the notary public and ensures registration with the Land Registry or recording with the National Land Registry, which gives rise to the real effects. Where a dispute arises, it brings the appropriate actions or interim measures and represents the client before the civil courts. ZIAMPARAS D. & ASSOCIATES has significant experience in real rights, matters of parental gifts with retention of habitation, and disputes between the beneficiary of habitation and the bare owner.