The right of habitation is a common legal concept in inheritances, donations, and family agreements, but it can also arise in real estate sales and investment transactions. Understanding what the right of habitation entails, what rights it grants, and how it is terminated is key to avoiding legal mistakes and properly valuing a property before making asset-related decisions.
In this article, we clearly explain what it means to have the right of habitation over a property, how its value is calculated, who is responsible for expenses, and in which cases the right of habitation can be revoked.
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What is the right of habitation over a property? Legal and practical definition
From a legal standpoint, the right of habitation is a real right of use or enjoyment over someone else’s property, regulated by Article 467 of the Civil Code. In practice, what the right of habitation over a property means is that a person (the usufructuary) can use and enjoy the home, even if they are not the full owner.
This is where the difference with bare ownership comes into play. The usufructuary can live in the property or even rent it out if the title allows, while the bare owner retains legal ownership but has no right of use while the usufruct is in force.
There are different types of rights of habitation over a property:
- Lifetime, when it lasts for the lifetime of the usufructuary.
- Temporary, if granted for a specific period.
- Total or partial, depending on whether it applies to the entire property or just a part.
It can arise through a will, a contract, or directly by law, as in many cases of inheritance by a surviving spouse or in situations of right of habitation for common-law partners, when agreed upon.
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Rights and obligations of the usufructuary and the bare owner
What someone with the right of habitation can do
The person holding the right of habitation can:
- Live in the property and use it as their primary residence.
- Rent it out and receive the income, if the title does not prohibit it.
This often raises the question: “If I have the right of habitation over a property, can I sell it?” The answer is that they cannot sell the property as an owner, although they can transfer their right in certain cases and with limitations.
The usufructuary is obligated to preserve the property, maintain its condition and structure, carry out ordinary repairs, and prevent deterioration that would reduce its value.
What corresponds to the bare owner
The bare owner is the legal holder of the property, but cannot use or enjoy the home while the right of habitation exists. However, they can transfer their bare ownership (for example, sell it), always respecting the usufructuary’s rights.
In joint operations, the usufructuary and the bare owner can sell the full ownership by mutual agreement, releasing the property from encumbrances.
Can the right of habitation over a property be sold, donated, or waived?
One of the most frequent questions we receive at our real estate agency in Estepona is whether the right of habitation over a property can be sold. In general, it is not sold independently without the bare owner’s agreement, although it can be transferred in certain contractual contexts.
The right of habitation over a property can also be donated, as long as the corresponding legal and tax requirements are met. Another option is for the usufructuary to decide whether the right can be waived: the answer is yes. Waiving it causes the bare owner to consolidate full ownership.
However, the right of habitation over a property cannot be inherited when it is for life. Upon the death of the usufructuary, the right is automatically extinguished.
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How is the value of the right of habitation over a property calculated?
Understanding how the value of the right of habitation over a property is calculated is key for inheritances, taxes, and real estate transactions. There are general guidelines:
- Temporary usufruct: it is usually valued at 2% of the property’s value for each year of duration, up to a maximum of 70%.
- Lifetime usufruct: the indicative formula used is 89 minus the age of the usufructuary, which gives a percentage of the property’s value, with a minimum of 10% and a maximum of 70%.
For example, for a property valued at €300,000, if the usufructuary is 69 years old, the calculation would be: 89 – 69 = 20%. In this case, the value of the right of habitation would be approximately €60,000.
Who pays the expenses, taxes, and community fees when there is a right of habitation?
Another common question is who pays the expenses of a property under a right of habitation. As a general rule:
- The usufructuary covers ordinary expenses: utilities, maintenance, community fees, and even property tax (IBI), unless otherwise agreed.
- The bare owner is usually responsible for extraordinary expenses or major structural repairs.
Therefore, how much is paid for the right of habitation over a property depends not only on its value but also on the associated financial obligations.
When does the right of habitation over a property end or get “lifted”?
The right of habitation can be extinguished for several reasons:
- Death of the usufructuary (if it is a lifetime usufruct).
- Expiration of the agreed term (temporary usufruct).
- Express waiver by the usufructuary.
- Agreement between the usufructuary and the bare owner.
- Joint sale of full ownership.
In practice, many people ask how the right of habitation over a property is lifted or when it is lost. The answer is that it requires a formal act: a notarized deed, registration in the Land Registry, and, if applicable, tax settlement.
There is also the question of whether the right of habitation over a property can be seized. In certain cases, yes: the right of habitation has economic value and can be seized, although with limitations depending on its nature.
Why might it be beneficial to work with a real estate agency in Estepona if you are managing a property with a right of habitation?
Managing a property with a right of habitation involves legal, tax, and market-related aspects that are not always obvious. Working with a local real estate agency like Cabanillas Real Estate allows you to:
- Properly assess the real value of the property, the bare ownership, and the usufruct.
- Receive guidance on processes involving sale, waiver, or termination of the right.
- Understand the real estate market in Estepona and the Costa del Sol, where demand and regulations directly affect profitability.
Professional support reduces risks and ensures the transaction is carried out with legal security.
Conclusions
The right of habitation over a property is a complex but very common concept. Knowing what it means to hold this right, how it differs from bare ownership, how it is calculated, and who pays the expenses is essential for making informed decisions.
Each situation is different: inheritances, donations, partnership agreements, or real estate investment strategies require specific analysis. That’s why having specialized advice is key.
If you need guidance on properties in Estepona or the Costa del Sol—whether to buy, sell, or manage a property with a right of habitation—getting in touch with Cabanillas Real Estate can make the difference between a secure transaction and a long-term legal issue.
Si tienes consultas puedes contactar en sales@cabanillasrealestate.com
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