Right of habitation (diritto di abitazione): what it is
On this page
What the right of habitation means in plain termsHow it arises and who can hold itWhat you can and cannot doRight of habitation and a home at auctionWhat it costs and who pays the taxWhen it endsIn practiceFrequently asked questionsSourcesThe right of habitation is the right to live in a home owned by someone else, but only you and your family. You cannot sell it, you cannot rent it out and you cannot make a profit from it. It usually arises for the surviving spouse after the other spouse dies, but it can also be created by an act of the owner.
What the right of habitation means in plain terms
The Civil Code defines it as the right to live in a home limited to the needs of the holder of the right and their family (art. 1022 of the Civil Code). The key word is «limitatamente» («limited»): it is not a property right but a right of personal use. The holder lives in the property, while the owner remains the owner.
You will find it written in a deed, in a will or in the mortgage search (visura ipotecaria), that is the document listing the registrations and transcriptions on the property. In the auction appraisal report (perizia) it is described as a right of habitation encumbering the home. If you see it, always ask who holds it, since when and until when.
How it arises and who can hold it
There are two main routes. The first is the law: the surviving spouse has a right of habitation over the family home (art. 540, paragraph 2, of the Civil Code). The right belongs to the spouse even when the rest of the estate goes to other heirs.
The second route is the owner's will. A will, a gift or another deed can create the right in favour of a person, for example a family member who needs a home.
Example. Luigi owns a house in which he lives with his wife Anna. Luigi dies. Anna, as the surviving spouse, has the right to live in the family home, even if ownership passes in part to other heirs. The number of heirs and their shares depend on the specific case, so the notary must read the will and check the situation.
What you can and cannot do
If you hold the right of habitation, you can live in the property with your family. However, you cannot:
- sell it or transfer it to another person (art. 1024 of the Civil Code);
- rent it to third parties and collect rent;
- use the home as a source of income, for example by regularly hosting other people for payment.
This is the main difference from the usufruct (usufrutto), which instead allows you to rent out the home and collect the rent. If you need more flexibility, ask the notary whether the deed creates a different right.
Right of habitation and a home at auction
If a property subject to a right of habitation is put up for auction, the buyer acquires the ownership. However, the right of the occupant can remain attached to the property if it is enforceable against third parties, that is, if it also applied against the creditors. A right registered before the seizure (pignoramento) is usually one of these cases.
To understand this, read the appraisal report, which states who occupies the property and on what basis, and the sale notice. The precise point must be checked case by case, and in these cases it is best to have a professional explain the situation to you before you bid. For the general picture of occupation, read how an occupied home at auction works.
What it costs and who pays the tax
The right of habitation has no cost in itself, but it has tax effects. For IMU purposes, the taxpayer is the holder of the right of habitation, in place of the owner, under the law governing the tax (L. 160/2019, art. 1, paragraph 743). The amounts and any exemptions depend on the cadastral income (rendita catastale) and on the Comune, so check them on the Comune's or the Ministero dell'Economia's website.
If the right comes from an inheritance, the rules of inheritance tax (imposta di successione) apply. Example: if the spouse inherits assets worth €1,200,000, the 4% tax is calculated on the excess over the €1,000,000 exemption threshold. So €200,000 × 4% = €8,000. The calculation covers the inheritance as a whole, not only the right of habitation.
If the home is bought, the notarial deed (rogito) also has costs. To understand who chooses the notary and who pays them, read who chooses the notary and who pays.
When it ends
The right of habitation is personal: it does not pass to the heirs of the person who holds it. It usually ends with the death of the holder. If the owner sells the home, the right created before the sale may remain in force, depending on how it was created and whether it is enforceable. So this point must be read in the deed.
If you buy a home subject to someone else's right of habitation, ask the notary before the deed which right encumbers the property, since when, and whether it is enforceable. The notarial deed also serves this purpose: what happens at the notary.
In practice
- Ask for the deed or will that creates the right, and read who holds it and since when.
- Check the mortgage search (visura ipotecaria): the right should appear as registered if it was created by a deed.
- If you buy a home encumbered by a right of habitation, ask the notary what effects it has on your ownership.
- If you are the holder, do not rent out or transfer the right: it is not allowed.
Frequently asked questions
Can I rent out the home if I hold the right of habitation?
No. The right cannot be transferred or rented out (art. 1024 of the Civil Code). Only you and your family may live there.
Does the right of habitation pass to my heirs?
No. It is a personal right and usually ends with the death of the holder. The owner of the home, by contrast, remains the owner.
Can someone who buys a home subject to another person's right of habitation remove the occupant?
It depends on when the right was created and whether it is enforceable. The notary or the professional who assists you must read the deed and the mortgage search before you sign.
Sources
In the same chapter
- Confirmatory deposit (caparra confirmatoria) and penitential deposit (caparra penitenziale): the differencesWith a confirmatory deposit, if you back out you lose the deposit; if the person who received it backs out, they return it doubled. Here are the differences, with examples.
- Who chooses the notary, who pays for themAs a rule, the buyer chooses and pays the notary, that is, the fee and the taxes: how to read the quote.
- Buying a home: every step from search to the notarial deed (rogito)From the viewing to signing at the notary: the six steps to buy a home, with documents, sums to pay and checks before you sign.
- Preliminary contract (compromesso): what it is and what it must containThe preliminary contract (compromesso) is the agreement through which you commit to buying a home. I explain what it is, what it must contain and how much you risk if the sale falls through.
- Pre-emption right: when it exists and how it worksPre-emption (prelazione) is the priority that gives you the right to buy first, at the same price and conditions: when it exists and how it works.
- Floor, orientation and lift: what they are worthFloor, orientation and lift change the price of a home. Here is how to assess them, with an example in euros and what to check before making an offer.
General information, not legal or tax advice: the law and the notice of sale prevail.
