Handing over the house
June 27, 2011 | 50,00 EUR | answered by Dr. Dr. Danjel-Philippe Newerla
Notarized facts
October 18, 1985: The mother hereby transfers ownership of real estate (two-story residential building) to sole ownership, with the obligation of the acquirer (me), to the following consideration:
Conditions:
1. Limited personal servitude, lifelong free right to use the apartment, etc. (excluding the owner from using it as an apartment).
2. Acquirer (me) undertakes to provide the mother with full care and support for life in case of illness, old age, free of charge, except if hospitalization is recommended by a doctor.
3. Acquirer's obligation: Funeral costs, any claims to death benefits are already assigned to the acquirer today. The acquirer agrees.
The contracting parties request to be entered in the land register:
1. The transfer of ownership
2. The limited personal servitude .... of this document in favor of Mrs. Maria Germann (mother), ...., in the next rank, with the note that proof of the beneficiary's death shall be sufficient for the deletion of this right.
December 7, 1993: Free donation of the residential building to my wife.
Questions: Personal servitude: Does my mother's right of residence towards my wife still exist? Does my wife still have to automatically grant my mother the right of residence? What about selling the house, or forced auction? Mortgage?
Care and support: Is my wife, or I, or my son still obligated to provide care? What about long-term care insurance? Mother receives a state pension.
Assignment of death benefits: My siblings have accounts with my mother's consent. My mother verbally informed me in 2007 that she has set aside 10,000 euros for funeral expenses. (Savings account or funeral insurance, I do not know?) Can my sister manage my mother's accounts, even though I am obligated according to clause 2 of the contract?
Best regards
Dear inquirer,
Thank you for your inquiry.
I would like to answer as follows:
1. Personal servitude: Does the right of residence of my mother towards my wife still exist?
Obviously, a notarial contract has been concluded here.
Of course, you cannot evade your contractual obligation by transferring the property to your wife free of charge.
In this way, you could potentially become liable for damages due to breach of contract towards your mother (based on your description, I do not see any evidence of this).
So, your mother can still rely on all the contents of the contract.
2. Does my wife still have to automatically grant my mother the right of residence?
As mentioned before, your mother can still rely on the contract.
Your wife does not have to grant your mother the right of residence, as it has already been granted by the contract.
If your wife, for example, refuses to acknowledge this, your mother could find a suitable alternative accommodation and charge you for the costs through a claim for damages (as mentioned above). Your mother could also sue your wife to grant the right of residence.
The claim for damages would exist because by transferring the property to your wife, you would then put her in a position to deny your mother something (at least practically).
3. What about the sale of the house, or foreclosure? Mortgage? Care and maintenance: is my wife, or I, or my son still obligated to care for?
The duty of care still exists as regulated in the contract. Based on your description, this duty primarily falls on you.
If the house is sold, the right of residence of your mother is not generally hindered, as it is registered in the land register according to your description.
In the event of a sale, your mother could also rely on the right of residence against the buyer (as well as against your wife).
4. What about long-term care insurance? Mother receives state pension. Assignment of funeral benefits: my siblings have possibly opened accounts with the consent of the mother. In 2007, my mother verbally informed me that she has set aside 10,000 euros for funeral expenses. (Savings account or funeral insurance, I do not know?) Can my sister manage my mother's accounts, even though I am obligated according to the contract conditions point 2?
No, without a separate directive (from your mother), your sister cannot manage the accounts.
Even if the notarial agreement does not imply her right/duty to manage (potentially through interpretation), in the event of their mother's death, the authority to manage would be held jointly by all heirs.
During your mother's lifetime, the possibility to manage the account generally belongs to you.
I hope that I have provided you with a first legal orientation and wish you much success and all the best!
I would like to point out the following to you:
The legal advice I have provided is based solely on the factual information you have provided. My response is only an initial legal assessment of the situation and cannot replace a comprehensive evaluation of the facts. Adding or omitting relevant information can lead to a completely different legal assessment.
I hope that my explanations have helped you. Feel free to contact me through the follow-up option.
I wish you a pleasant Monday afternoon!
Kind regards from the North Sea coast
Dipl.-Jur. Danjel-Philippe Newerla, Attorney
Stresemannstr. 46
27570 Bremerhaven
kanzlei.newerla@web.de
Fax.0471/140244
Tel. 0471/140240 or 0471/140241
