Right of residence for life
July 22, 2010 | 30,00 EUR | answered by Bernhard Müller
My aunt and my uncle, who passed away 3 years ago, financed a condominium for one of their two biological daughters. The beneficiary daughter is listed in the land register and it was orally agreed that the parents would have the right to live there for the rest of their lives and be taken care of.
Meanwhile, my aunt has moved in with the other daughter, as the now dependent woman unfortunately does not receive any care since her husband's passing. My aunt now incurs rental costs at the new place, which should be covered by renting out the condominium. However, the first daughter refuses this, as she believes that my aunt would no longer have any rights after moving out of the condominium, even though lifetime right of residence and care were promised. Is this lawful?
Dear inquirer,
The right of residence is considered a limited personal servitude and is not transferable according to § 1092 of the German Civil Code (BGB).
Its exact content is defined in § 1093 BGB. Paragraph 2 of this section specifies who the holder of the right of residence is allowed to admit into the apartment. The right to lease is not included in the right of residence.
If your aunt had also wanted the right to lease, a usufruct would have had to be agreed upon instead of the right of residence. Additionally, an oral agreement is invalid according to § 125 BGB.
Therefore, the refusal of the 1st daughter is lawful.
Attached you will find the wording of § 1093 BGB.
Best regards,
Bernhard Müller
Lawyer
Attachment
§ 1093(1) A limited personal servitude may also be established as the right to use a building or part of a building as a residence, excluding the owner. The provisions of §§ 1031, 1034, 1036, § 1037 para. 1, and §§ 1041, 1042, 1044, 1049, 1050, 1057, 1062 applicable to usufruct shall apply accordingly.
(2) The holder of the right is authorized to accommodate their family as well as persons necessary for service and care in the residence.
(3) If the right is limited to a part of the building, the holder may use the facilities and amenities intended for the shared use of the residents.
