Right of residence – Habitatio

The Family Law of the Republic of Serbia from 2005 (“Official Gazzete of Republic of Serbia”, no. 18/2005, 72/2011 – and 6/2015) for the first time regulates the personal servitude of the right of residence (habitatio), i.e. the right of a minor child and the parent who solely exercises the parental right to ensure that the child has a place of residence, at the expense by the other parent who owns an apartment/house.

What is the right of residence?

The provision of the Family Law that regulates the right of residence reads:

“The child and the parent who is solely exercising parental rights have the right to live in an apartment owned by the child’s other parent, if the child and the parent exercising parental rights do not have the right of ownership in the habitable apartment.”

The right of residence lasts until the child comes of age.

A child and a parent do not have the right of residence if the acceptance of their request for the right of residence would constitute an obvious injustice to the other parent.”

Divorce and the right to housing

In the first place, it is important to note that the realization of this right is possible only in civil proceedings before the court in connection with family relations, and consequently the protection of this right is realized according to the rules in the dispute for the protection of the rights of the child. Therefore, the fact of divorce is not important for the decision on the right of residence because it is the right of the child, not the (former) spouse. The court decides on the request for the establishment of the right of residence by a judgment in which it also decides on the exercise of parental rights, and if the court has already decided on the exercise of parental rights, and the request for the establishment of the right of residence was not submitted or was rejected, the request can be submitted later. , if the other conditions are met, or if they have been met in the meantime.

 

What are the conditions for a child and a parent to receive the right of residence?

As far as the conditions are concerned, the right of residence is acquired by the child and the parent if:

• the child is a minor
• the parent independently exercises parental rights over the child
• a parent who does not exercise parental rights independently has a habitable apartment or a habitable separate part of a residential building
• the child and the parent exercising parental rights independently do not have the right of ownership of the habitable apartment or part of the building
• a parent exercising parental rights makes such a request, i
• the court approves the request for the constitution of the right of residence.

In accordance with the stated conditions, it is important to note that adulthood is attained at the age of 18, and the child’s right of residence lasts only until that moment and cannot be extended.

Refusal of housing rights due to injustice towards the other parent

Finally, within the framework of paragraph 3 of Article 194, as the last condition for constituting the right of residence, the so-called “legal standard” of obvious injustice for the parent who is the owner of the apartment or a separate part of the building, and it is stated in the same that the request for the constitution of the right of residence will be rejected by the court if, based on the presented evidence, it judges that its adoption would represent an obvious injustice for the parent who is the owner apartment or a separate part of the building.

The problem with this formulation of one of the conditions lies in the fact that this formulation leaves a wide space for interpretation of what is meant by the term obvious injustice, and the judicial practice in these cases is not unique either.

However, through the interpretation of judicial practice, the position of the majority could be singled out that the legal standard of obvious injustice is seen in the context of the health condition, social vulnerability, and other circumstances that the parent, based on which this right is constituted, could not be corrected by his involvement and actions. In other words, the fact is considered whether the entire situation in which the parent would find himself after the possible adoption of the claim would be such that it would represent an obvious injustice for the defendant.

How does the court decide regarding the right of residence?

Regardless of the above, the court in this case must be guided by the best interest of the child, and in this sense, it will take care to obtain evidence of the fulfillment of the conditions for the constitution of this right, ex officio during the proceedings, and on the parent who does not exercise parental rights and is the owner of the apartment, the burden of proving that the constitution of the right of residence would represent an obvious injustice for him.

Finally, the procedure itself ends with a decision by the court, which approves the claim to establish the right of residence for the child and the parent exercising parental rights, the claim is rejected as unfounded.

Can the right of residence be established for real estate that is not registered?

In short: it cannot.

Given that the right of residence is a personal servitude that is registered as an encumbrance (note) in the real estate deed, it is not possible to establish the right of residence on an object that is not registered and that is not registered in the name of a parent who does not exercise parental rights independently.

Can the right of residence be established for real estate that is subject to credit and mortgage?

In short: It can.

As we stated earlier, the right of residence is a personal servitude, and it “follows” the immovable property. This means that regardless of the immovable property being encumbered (mortgaged), the right of residence can be established.

 

What happens if the owner of the real estate sells the real estate during or after the proceedings?

There are two problems in these situations.

In all real estate sales contracts, as a rule, there is an obligation of the seller in which he claims that the real estate is free of encumbrances and that no court proceedings are conducted in connection with the specific apartment/house.

If the seller, wanting to frustrate the passing of the court decision, sold the apartment/house, the buyer could request termination of the contract because the seller intentionally misled him.

On the other hand, if the parent against whom the right of residence – habitatio was established sells real estate after the encumbrance has been registered, such sale does not affect the right of residence because it was established until the child’s 18th birthday.

Can the parent who is the owner of the real estate remain living in the real estate for which the right of residence has been established?

If the situation is such that the parents of the child are on good terms, as well as if the court judges that it would be possible (first, taking into account the size of the real estate), a decision can be made that everyone lives in the real estate in question.

When is the right of residence terminated?

As we stated, the right of residence is an institute that is applied when the child has nowhere to live and when other necessary conditions are met. Also, the right of residence is time-limited until the child turns 18. When the child reaches the age of 18, according to the law, the personal service of the right of residence – habitatio – ceases. However, all conditions must exist throughout the duration of the right of residence. This means that if the child or the mother were to acquire real estate or one of the other conditions would fall away, the parent against whom this right was established could demand in court proceedings the cancellation of the right of residence due to the lack of necessary conditions.