Establishment of the Right of Habitation Through Wills: Impact on Real Rights

Wills are a significant mechanism for establishing the right of habitation, with the associated changes in real rights intertwined with the realization of the testator’s intention and the maintenance of family harmony and stability. However, the “effective upon registration principle” provided by Article 368 of the Civil Code cannot be applied mutatis mutandis to the establishment of the right of habitation through wills. Instead, real rights change rules specific to wills should be applied directly based on a systematic interpretation of the Civil Code. Wills can be implemented through two primary methods: testamentary succession and bequest. Due to their distinct legal effects, the establishment of the right of habitation through wills should be further categorized into establishment of the right of habitation by testamentary succession and establishment of the right of habitation by bequest. For testamentary succession, Article 230 of the Civil Code directly governs the process, and the right of habitation become effective upon the opening of the succession, with registration serving a public declaration function. Conversely, the establishment of the right of habitation through bequest falls under Article 209 of the Civil Code, with the right of habitation taking effect upon registration, adhering to the “effective upon registration principle”.