2011 | 20 | 3 | 681-705
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Servitude of habitation in Swiss law

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Swiss doctrine distinguishes real servitudes and personal servitudes. Personal servitudes are divided into regular (Eigentliche) and irregular (Irreguläre). Regular servitudes are nontransferable, whereas irregular ones are heritable and transferable. A right of habitation can only exist in the form of a regular personal servitude. Basic features of a servitude of habitation were normatively expressed in Section 776.2 of the ZGB. The said provision excludes expressis verbis transferability and heritability of this right („Es ist unübertragbar und unvererblich.”). The relationship between these two features was highlighted by M. Heinz. He emphasized that if a servitude of habitation were transferable, the provision of its being non-heritable would become ineffective. It would be annulled by every transfer of this right. Such ‘perpetual burdens’ would result in a servitude of habitation not being established at all. A servitude of habitation cannot be seized and cannot be encumbered with usufruct or a pledge. According to doctrine and judicial decisions it is impermissible to circumvent the prohibition on transferability by establishing an irregular servitude under Article 781 of the ZGB. It should be stressed that a substantial interest of jurisprudence (including judicial decisions) in a servitude of habitation is accompanied by a full-scale doctrinal discussion, which focuses on the criteria of delimitation of usufruct and a servitude of habitation, seeking a justification for non-transferability of the exercise of this right, decoding a legal character of an agreement establishing a transferable servitude of habitation, the permissibility of establishing it as an ownership right and the analysis of real obligations linked to this type of a personal servitude. The presentation of standpoints worked up in Swiss law (including the ones considered to be controversial) enables us to notice which legislative solutions can lead to theoretical and practical complications, which is an invaluable hint for a Polish legislator in the context of working on a new civil code. Like in Swiss law, a servitude of habitation should still be regulated in a future Polish civil code as a type of a personal servitude. It is not justified to integrate it together with usufruct. In contrast to cantonal acts no explicit prohibition on transferring the exercise of a servitude of habitation has been included in the ZGB. The analysis of codificational materials does not reveal which motives the legislator took into consideration while introducing such a provision. It can be only assumed that the legislator considered an explicit regulation to be necessary. This gives rise to certain ambiguities. Although both doctrine and jurisprudence are of the opinion that a servitude of habitation is absolutely nontransferable, even in its exercising, significant differences regarding this standpoint have appeared. E. Huber, C. Wieland and H. Leemann derive the prohibition on transferring the exercise of a servitude of habitation from Article 777 of the ZGB. From subsection 1 of this Article reading: „Das Wohnrecht wird im allgemeinen nach den persönlichen Bedürfnissen des Berechtigten bemessen” they conclude that the holder – subject to Article 777.2 of the ZGB – is allowed to exercise a right of habitation only personally. The above reasoning has attracted criticism. It has been emphasized that Article 777 of the ZGB refers only to the scope of a right of habitation. Neither subsection 1 nor subsection 2 of the said Article refer to the issue discussed here. The analysis of Article 776.2 of the ZGB leads to similar observations. The Article contains only the impermissibility of a transfer of the right. An ordinary leaving of the right to be exercised is not a transfer of this right and as such does not undergo the aforementioned regulation. As M. Heinz emphasizes relevantly, answers to the question whether a servitude of habitation may be transferred to be exercised should be sought within a broader context by placing deliberations within the system of servitudes. Regular personal servitudes (Die eingentlichen Personaldienstbarkeiten) are ex definitione inseparably connected with the holder. The legislator rejected this principle in the case of usufruct and allowed transferability of its exercise in the provision of Article 758.1 of the ZGB. Following this principle, regarding specific personal servitudes are used in relation to a right of habitation due to a lack of an explicit regulation. The feature of their inseparable connection with a holder irrevocably decides about non-transferability of the exercise of a servitude of habitation. This discussion confirms the purposefulness of regulating the mentioned issue explicitly, right in provisions about personal servitudes. Pursuant to Article 778.1 of the ZGB the holder of a servitude of habitation is obliged to maintain a real property in an ordinary way only. He/She does not have to pay a tax on encumbered real estate and other public fees. Such a distribution of a duty to bear burdens is optimal. There exist two legislative resolutions. The first autonomic – following Swiss law –would cover the regulation of an obligation to bear costs of maintaining a real estate in a complex way. The other would be based on an enumerative reference to provisions concerning usufruct. Regardless of the final legislative distribution the regulation of the distribution of a duty to bear costs should be formulated in a flexible category of dispositive norms.
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