婚姻家事纠纷（调解/诉讼）实战专家

十年专注·大宗财产类 婚姻家事法律服务

广东道华律师事务所，唐云虹律师，道华婚姻家事律师团，深圳知名离婚诉讼律师 专业遗产继承纠纷律师，广东、深圳十大婚姻家庭律师事务所，专业处理：大宗疑难离婚调解/法院诉讼、房产小产权房产分割、遗嘱遗产继承纠纷、遗嘱公证、离婚财产分割、离婚后财产纠纷、离婚/婚内协议、抚养权争夺、遗嘱继承纠纷、法定继承纠纷、土地房产继承、农民房拆迁继承、遗嘱订制、遗嘱效力认定等等非诉、争议等。服务区域：深圳福田 南山 罗湖 龙岗 宝安 龙华 光明 坪山 大鹏 盐田

Introduction: "The Civil Code of the People's Republic of China" (hereinafter referred to as the "Civil Code") has for the first time added the "right of residence" as a new type of usufructuary right in the property right chapter, and has established the system of the right of residence in the form of a special chapter. The introduction of this system is not only an important supplement to China's housing security system, but also a legal response to the people's livelihood goal of "having a place to live". It provides a new institutional tool for resolving housing disputes in reality. Tang Yunhong, the chief lawyer of the marriage and family law team of Guangdong Dao Hua Law Firm, will deeply analyze the system of the right of residence in this article, from the legislative background, specific legal provisions, conditions for establishment and applicable scenarios, procedures and materials, etc., to provide guidance for practical operations.

I. Legislative Background: Responding to People's Livelihood Needs and Improving the Legal System

The 19th National Congress of the Communist Party of China proposed the “accelerated establishment of a housing system with multiple suppliers, multiple channels of guarantee, and a combination of renting and purchasing”, and the residential right system, through the protection of property rights, provides a more rigid legal support for housing security, which is the legislative implementation of the concept of “houses are for living in, not for speculation”.

For a long time, many people have been facing difficulties in ensuring their housing rights. In social life practice, the housing needs of vulnerable groups such as the weaker party in a divorce, lonely old people, and relatives without a house are difficult to be fully covered by the existing security system. Some groups are prone to fall into difficulties in finding a place to live due to high housing prices, as they do not meet the application conditions for public rental housing or low-rent housing. At the same time, in judicial practice, there are frequent “housing-for-old-age” scams, difficult-to-resolve housing resettlement disputes after divorce, inheritance disputes caused by housing rights arrangements in wills, and other issues that urgently need clear legal rules for regulation. To respond to the realistic demands of vulnerable groups for housing security, and to standardize property management and resolve civil disputes, the residential right system has emerged in a timely manner.

（Image source: AI generated）

II. Core Legal Provisions and Key Points

The Article 366 of the Civil Code stipulates: “The occupant of the residential right shall have the right to enjoy the usufructuary right of possession and use of the residential property of another party in accordance with the contract, in order to meet the needs of living and residence.”

The occupant of the residential right shall have their right of possession and use of the house protected by law within the agreed period, even if the ownership of the house changes. When the legitimate rights and interests of the occupant of the residential property are obstructed or there is a risk of obstruction, they may claim the right to exclude obstruction and eliminate danger. Even if the owner of the residential property transfers, mortgages, leases, or engages in other actions, the transferee of the rights shall still be bound by the established residential right on the house and shall not obstruct the living interests of the occupant of the residential right.

According to the provisions of the law, the core purpose of establishing the right of residence is to meet the needs of living and residing, and does not include the right to gain, therefore, the holder of the right of residence may not use the residential property for purposes other than living and residing, and may not rent out the residential property for profit without the prior agreement of the owner of the residential property. This provision clearly distinguishes the legal attributes of the right of residence (property right) and the right of tenancy (creditor's right), and the right of residence, as a property right, has a stronger right protection effect.

(1) Situations for Establishing the Right of Residence

According to the provisions of the law and practical practice, the establishment of the right of residence includes the following three statutory situations:

1. The parties establish the right of residence by entering into a written contract;

2. The owner of the house's ownership establishes the right of residence through a will;

3. The right holder acquires the right of residence based on the effective legal documents of the people's court or arbitration institution.

(II) Restrictions on the Establishment of the Right of Residence

1. Subject restriction: According to Article 366 of the Civil Code, the core meaning of “meeting the needs of living and residence” is that the right of residence has a strong personal attribute and can only be enjoyed by individuals themselves, and legal persons and unincorporated organizations cannot become the subjects of the right of residence.

2. Subject Limitation: The subject of the residential right is “residential property,” which is limited to establishing on the residential property and its附属设施 owned by others, and residential rights cannot be established on non-residential buildings such as commercial properties. In addition, if the residential property to be established with residential rights has been mortgaged, and the mortgage contract explicitly stipulates that no other rights (including residential rights) may be established, the establishment of residential rights requires prior written consent from the mortgagee; if the residential property is under a judicial seizure, it is not legally allowed to establish residential rights.

(Three) The Effective Rules for the Registration of Residential Rights

The Civil Code Article 368 stipulates: “The establishment of residential rights is free of charge, except where the parties have otherwise agreed. The establishment of residential rights shall require the applicant to apply to the registration authority for the registration of residential rights. The residential right is established upon registration. ”If the parties enter into a residential rights contract but fail to register it in accordance with the law, the residential right does not have the effect of property rights, but the validity of the residential rights contract itself is not affected by whether it is registered or not. The residential right holder has the right, based on a legally valid residential rights contract, to request the owner of the residential property to fulfill the contractual obligation to assist in the registration of the residential rights.

（四）The Transfer of Residence Rights is Strictly Limited

According to Article 369 of the Civil Code: “Residence rights may not be transferred or inherited. The residential property with established residence rights may not be rented out, except as otherwise agreed by the parties.” To prevent the residential rights from being transformed into a profit-making tool and to uphold the民生保障属性 of residence rights, the law imposes strict restrictions on the transfer of residence rights. However, it allows the parties to exclude the prohibitive provisions of “may not be rented out” through special agreements, granting residence rights a certain degree of circulation space to maximize the value of residential use.

（五）The Termination and Cancellation of Residence Rights Registration

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Article 370 of the Civil Code stipulates: “When the term of the right of residence expires or the person with the right of residence dies, the right of residence shall terminate. Upon the termination of the right of residence, the registration for cancellation shall be handled in a timely manner.” After the termination of the right of residence, the right holder shall return the house to the owner of the residential property and cooperate in handling the procedures for cancellation registration to ensure that... ```