ALGUNAS CONSIDERACIONES SOBRE LA ACTUALIDAD DEL DERECHO REAL DE HABITACIÓN EN EL TRÁFICO JURÍDICO INMOBILIARIO.

Abstract

The real right of habitation provided for in articles 523 et seq. of the Civil Code, which is backed by long-standing tradition in our law, currently performs an important social function, as is shown by the interest it has aroused in the latest legislative drafts and reforms. However, the way the real right of habitation works continues to pose some important questions today that the body of this paper endeavours not only to list, but to answer as well. To its aid come the teachings of the finest of our doctrine and case law and, not the least, the solutions offered by comparative law, which receive special attention. Analysis is also devoted to the consequences stemming from the extraordinarily diffuse nature of habitation and to the complexity of establishing its limits and breadth for the sake of legal certainty, especially in the registration of a right of habitation. There is also an analysis of the concept of the family, its enlargements or reductions, the problems stemming from the «cohabitation» of a disabled person who holds the same right as a widowed spouse or the existence of third-party residents, the question of the admissibility of the exercise of professional or commercial business, the sharing of property expenses and the exercise of rights by the holder of the right of habitation when he or she resides in a building that is in a horizontal property scheme, the incompatibility between the principle of the protection of the family and its home and the potential transmissibility of the right and, lastly, the circumstances surrounding the termination of the right. This article also studies the grounds for remodelling the right of habitation as a technique or measure that is not strictly protective or aimed at providing support for necessities, but as an alternative to other rights, such as leaseholds, or even as a deferred way of gaining access to ownership. Lastly, it is suggested that its content should be put through painstaking examination, which may show that its postulates should be revised; on the other hand, a biased treatment of the right of habitation as a side issue following upon a partial reform in other areas is advised against.