DERECHO DE HABITACIÓN SOBRE LA VIVIENDA HABITUAL A FAVOR DEL DISCAPACITADO EN EL DERECHO ESPAÑOL.

Abstract

Act 41/2003 of 18 November (on protection for the assets of persons with disabilities and amending the Civil Code, the Act on Civil Procedure and tax legislation for this purpose) introduces an important new feature in its reform of article 822 of the Civil Code: It adds fresh content, regulating the right of habitation of a disabled recipient of a legitime. This rule directly protects the assets of persons with disabilities by dealing favourably with gifts or legacies of rights of habitation for legitime recipients with disabilities living with the giver or testator in the regular home at issue in the right of habitation. This favourable treatment consists in not calculating the right as part of the recipient's assets, although with the precaution that the right of habitation cannot be transferred. In addition, this same rule grants any legitime recipient with disabilities who needs it a legal legacy of the right of habitation in the regular home in which the recipient used to live with the decedent, provided that the decedent has not made any other testamentary dispositions with regard to the right of habitation.