[2] The Right of Habitation System: "Home Ownership for All"

[2] What is the right of residence?
[3] The right of residence refers to the right to possess and use another person's housing and its ancillary facilities for the purpose of living. It is a newly added usufructuary right in the property rights section of the Civil Code and a major highlight of the code. The establishment of the right of residence aims to address the housing needs of certain groups in society, improve the housing security system, enhance housing efficiency, help cope with an aging society, and achieve the goal of "having a place to live."

 

 
[4] To establish the right of residence, the following points should be noted:
[5] 1. The purpose of the right of residence: solely to meet the needs of living[6] The holder of the right of residence only has the right to reside, not the right to inherit or transfer, unless otherwise agreed by the parties.
 
2. Establishment of habitation right: written contract + registration of habitation right。
Written contract: Both parties shall enter into a habitation right contract in writing.
Registration of habitation right: Both parties shall apply for registration of the habitation right with the registration authority.The habitation right is established upon registration.Thus, it can be seen that the habitation right must be registered. Since the habitation right is based on immovable property such as a house, its existence may affect the use, sale, lease, or mortgage of the house, so the habitation right requires public notice.
 
3. Duration of habitation right: The parties may agree on the duration; if no agreement is made, the habitation right is extinguished upon the death of the holder.The parties may agree on a term of 5 years, 10 years, 20 years, or even a lifetime. If it is valid for life, the right of habitation is extinguished only upon the death of the right holder. Upon expiration of the right of habitation, the parties shall handle thecancellation of registration。
 
4. Fees for the right of habitation: In principle, it is gratuitous, unless otherwise agreed by the parties.
 
5. The new owner of the property may not terminate the right of habitation prematurely.Whether the original owner sells, gifts, or the property is inherited by children, the new owner cannot thereby terminate the right of habitation of the original holder. It can be seen that the right of habitation is a relatively stable right; unless it expires, no one can terminate it prematurely.
 
6. The right of habitation may not be transferred or sold, nor may it be inherited by the children of the right holder.

 

 
Differences between Right of Habitation and Lease
1. In terms of nature, the right of habitation is a usufructuary right, while a lease is a creditor's right. This fundamental difference determines that the right of habitation is a relatively stable right.
 
2. In terms of the maximum agreed duration, the right of habitation can be agreed for a lifetime, while the maximum term for a lease relationship is only 20 years.
 
3. In terms of cost, the right of habitation is generally gratuitous, unless otherwise agreed by the parties, whereas a lease is typically for consideration.
 
4. In terms of transfer of rights, the holder of the right of habitation does not have the right to transfer or sell, while a lessee in a lease may sublease the property again after obtaining the lessor's consent.
 
5. In terms of stability of rights, the right of habitation is not affected by the transfer or sale of the property, while a lease relationship enjoys the principle of "sale does not break the lease." Thus, it can be seen that neither is affected by changes in ownership.
 
 
Potential drawbacks of the right of habitation
In summary, the right of habitation may seem to bring a picture of peaceful living, but upon careful consideration of reality, it becomes clear that it could also lead to many problems.
 
1. The most direct impact is on property transactions.Previously, when buying a house, one would generally check the property owner on the real estate register and whether the property had any leases or mortgages. However, with the emergence of the right of habitation, future property buyers will also need to check whether the property is subject to such a right. If it exists, it means that the buyer's possession and use of the property will be restricted for a certain period. This undoubtedly greatly increases the difficulty of real estate transactions.
 
2. Who gets the ancillary rights of the property?In modern society, especially in developed cities, housing is not just about solving the problem of residence; it is also tied to social security, school enrollment, and household registration. Typically, because the property owner resides in the house long-term, they enjoy the ancillary rights attached to it. But now that the right of habitation separates the right to reside from ownership, should the person with the right of habitation also be entitled to these ancillary rights?
 
3. Defaulters may use the right of habitation to evade debts.If a defaulter's house is subject to court enforcement, they can establish a right of habitation on the property. Since the right of habitation is not affected by transfer or sale, the court will face difficulties when enforcing the property. First, when the court seizes the property, whether the holder of the right of habitation should be evicted. Second, during a forced auction, whether the auction price and method will change due to the existence of the right of habitation.

 

 
[1] The author's perspective
Housing is the most fundamental and important issue in modern society. It is not only related to people's livelihood and the economy but also closely tied to society and politics. Solving the housing problem not only meets the basic living needs of the people but also helps maintain social stability. In fact, the key to achieving "home ownership for all" is not ownership but precisely the right of habitation.
 
The author believes that the establishment of the right of habitation is very suitable for the current situation. However, precisely because this is a new right, the corresponding measures in society are not yet fully developed. It can be seen that most of the provisions on the right of habitation in the current Civil Code rely on the parties' own agreements, and the variability of specific matters is too great. As a property right, excessive involvement of party autonomy is actually detrimental to the characterization of the property right itself.
 
The right of habitation is separated from ownership. From a legal perspective, the right of habitation and ownership are equal in property law. The advantage is that the right of habitation cannot be arbitrarily broken by ownership, but the disadvantage is that such a "strong" right of habitation actually affects ownership. The system of the right of habitation is indeed conducive to maximizing the use of property, thereby solving some social problems. However, legislation alone is not enough; more details need to be further clarified and explained by the legislature. Only when the law is implemented can it be meaningful. At the same time, the establishment of the right of habitation may also give rise to new industries. Everything has its pros and cons. In the face of social changes, we must also be prepared to solve problems at any time.