Personal servitudes are rights that allow a specific person to use someone else’s property in a manner prescribed by law or contract. As their name suggests, these are servitudes of a personal nature, meaning they are tied to a specific person and cannot be transferred to others (non-transferable rights). In the event of the death of the holder of a personal servitude, the right expires by operation of law (non-inheritable rights).
Personal servitudes can arise from a legal transaction (inter vivos and mortis causa), a decision by a state authority, or based on the law. In practice, personal servitudes are most commonly established by entering into a contract, i.e., through the agreement of the parties involved. This can be an independent contract. In practice, personal servitudes are sometimes established during the conclusion of another legal transaction. For example, parties may conclude a gift contract, in which the donor specifies that they will have the right to usufruct on the property being gifted. For the creation of personal servitudes, as with any right, alongside the contract as an iustus titulus, there is also a need for a modus aquirendi – for personal servitudes on movable property, the item must be handed over, while for personal servitudes on immovable property, registration in the land registry or other public books is required.
Personal servitudes expire when the time period for which they were established elapses, based on a decision by a state authority, through the destruction of the object of the servitude, upon the death of the holder of the right, or through a declaration of renunciation of the right, which must be notarized. Even in the case of any of the aforementioned reasons for the termination of personal servitudes, such a change must be recorded in the land registry, and the removal of the registered servitude must be carried out, thus indicating its definitive termination.
There are three types of personal servitudes: the right of usufruct, the right of use, and the right of habitation.
Usufruct (Ususfructus)
The right of usufruct is a personal servitude that allows its holder the right to use and gather the fruits from another person’s property, while the owner retains only the so-called bare ownership during the term of the usufruct. This is a real right providing the broadest usage of someone else’s property and is considered the most important personal servitude. The subject of usufruct can be both movable and immovable property. It is essential that the property is “non-consumable,” meaning its use does not diminish or alter its substance. For instance, the subject of usufruct could be a car or an apartment, and the usufructuary can use them, lease them, collect fruits from their use, etc. On the other hand, consumable items like food or fuel cannot be the subject of usufruct. If consumable items are involved, this constitutes a contractual relationship rather than a real right, and would be termed an “improper usufruct.” In such cases, the consumable items become the property of the improper usufructuary, who is obligated to return the same quantity or compensate for their value upon the termination of the improper usufruct.
In practice, the subject of usufruct is most often an apartment or another immovable property. Usufruct on an apartment or any other property does not prevent or hinder the transfer of that property, and it can be done without the consent of the usufructuary. However, it is still desirable to purchase immovable property free of any encumbrances. Usufruct is a non-transferable right, but the usufructuary may transfer the exercise of the right to another person.
Right of Use (Usus)
The right of use is a personal servitude that allows its holder to use someone else’s property and gather fruits from it, but only to the extent necessary for their personal needs and those of their family members, without diminishing the essence of the property itself. The right of use is now considered a limited form of usufruct, as, unlike a usufructuary who can collect all the benefits from the property, the holder of the right of use may only take as much as is necessary for their own needs and those of their family. The right of use is non-transferable and non-inheritable. The holder of the right of use cannot transfer their right to a third party, as this would contradict the very essence of the right.
Right of Habitation (Habitatio)
The right of habitation is a personal servitude that allows the holder to live (reside) in someone else’s immovable property but does not grant the right to collect fruits either for their personal needs or to lease the property. Therefore, it is a personal servitude that provides the narrowest scope of rights and offers the least authority. One example of a statutory right of habitation is the right of habitation established by the Family Law for a child and the parent exercising parental rights in a dwelling owned by the other parent, if the child and the parent exercising parental rights do not own a residence. This right may last until the child reaches adulthood, provided that such an arrangement does not constitute an obvious injustice to the other parent.