A servitude of habitation is a right that encumbers a third party’s property and allows that property to be used by a designated individual for a lifetime. For example, parents who transfer ownership of an apartment or house to their children may reserve the right to use specific rooms or floors. If this legal solution is applied, the said tenants (in this case: parents) gain certainty that regardless of the circumstances, they will be able to continue to live in the property and use the facilities and common rooms, e.g. garage or laundry room.
The legal institution in question is of personal nature, thus it is vested in a person individually specified by name. It is also non-transferable and expires at the latest upon the death of the person entitled. The establishment of a servitude consists of a declaration made by the owner of a real estate, by virtue of which he surrenders part of the rights to his property. The document should be drawn up in the form of a notarial deed and indicate not only the premises to which the easement will apply but also the manner and scope of its use by the servant. However, if one wants to take advantage of the benefits of the discussed institution, it should be taken into account that the servitude needs to be entered in the real estate register as a right in rem. The discussed solution is usually included in life-tenancy or donation contracts, but in recent years more and more often it occurs on its own.
The object on which the right can be established for the benefit of a third party is developed land, real estate (when the building is a separate object of property), or residential premises. The servitude may concern the whole property or a specified part of it. For example, we can designate a selected room or an entire single-family house. When establishing a servitude, the parties may agree that after the death of the beneficiary the easement will be granted to his/her children, parents, and spouse. The duration of this right may then be significantly extended.
It should be emphasized that any real estate encumbered with a servitude may be bought or sold without the consent of the servant. However, the right itself cannot be sold in any way, which means that it is not subject to execution either. In practice, this means that the buyer is obliged to respect the rights of the person with the right of servitude. The establishment of the said right on the real estate effectively discourages potentially interested persons from purchasing it and significantly lowers its value.
Nowadays, real estate is the most important asset of many people, therefore, if there are any financial problems, it is a priority to secure that real estate against possible execution. An alternative to a standard sale or donation agreement, which does not deprive the owner of his/her right to the real estate, is in this case the above described lifetime servitude.
The indicated legal institution in a simple way protects debtors from their creditors by discouraging potentially interested persons from purchasing real estate with an “additional tenant”. Usually, bailiff auctions conducted in such cases end up ineffective, because the potential buyer is aware that he or she will have to respect the rights of the person with the right of servitude.
Author
Oskar Kozikowski