USE AND HABITATION. - Use (u.) is a form of usufruct (v.) that is limited, and the right of habitation (a.) is a particular kind of use that has as its object a house. Use differs from usufruct in the limitation of enjoyment and in its adherence to the person or persons, such that it is in any case inalienable.
Usufruct in fact comprises two rights, indicated by the two terms uti and frui: use stops at the first and, at least in Roman sources, did not include the right to enjoy the fruits of the house that was the object of the use: nudus usus id est sine fructu (D. 7, 8, 1, 1). It was only through the intermediate right that, in modern codes, the right of use was extended to the fruits of the house (cf. Cod. civ. ital., art. 1021).
Anything that is in commerce can be the object of use. The establishment of the right of use can occur in various ways: by contract, by will, or by prescription in the forms required for usufruct; but it cannot occur by law, except exceptionally (in the case of a widow, who has not separated from her husband through her own fault, who enjoys the right of habitation over the husband’s inheritance for one year, ibid., art. 108). Given the substantial identity that exists between use and usufruct, many of the norms relating to the latter institution also apply compatibly to the former (ibid., art. 1026); this is also the case with regard to extinction (ibid., art. 1026). Rights and obligations are also nearly the same as those of the usufructuary.
With regard to obligations, the user is bound, like the usufructuary, to provide—after the compilation of an inventory—the guarantees of conservation and restitution, and to use the goods tamquam bonus pater familias; to contribute, in proportion to his enjoyment, with the owner to ordinary repairs, annual charges, cultivation expenses, etc. (ibid., art. 1025). The user cannot alienate the fruits that exceed his own needs; and he is bound, even in conscience, for damages caused through his own fault to the property. With regard to the rights of the user, whoever has the right of use over a thing may make use of it and gather its fruits, if it is productive, to the extent necessary according to his social condition (ibid., art. 1021). In both use and habitation, the right extends also to the family of the person who possesses this right (arts. 1021–22). Included in the family are children, whether born or adopted, or those who have entered it through affiliation, even after the right of habitation began, although at the beginning of the right of acquisition, the person enjoying such a right had not yet even married. Also included are persons who are supported by the one who has this right or who have rendered some service to him or his family (art. 1023).
In ancient times, the right of habitation also extended to the enjoyment of a certain usufruct in that whoever had the right of habitation could also sublease the whole or part of II. Modern law, however, has removed the faculty of transferring the right of habitation or subleasing, because these are personal rights (art. 1026). But, if the owner does not object, a lien can be established over these rights. Habitation must be established in writing, and this right can also be renounced in writing. The conventions regarding this right must also be stipulated in writing. When the right of habitation is acquired, an inventory must also be given. The right of habitation also entails the obligation to inhabit the house without causing any damage other than that strictly linked to normal wear and tear. The person who has the right of habitation is also bound to make ordinary repairs and to pay the taxes pertaining to the habitation. The same applies to use (art. 1025). Civil laws regarding use and habitation are binding in conscience, with the reservations made regarding usufruct (v.).
For a habitation to be worthy, healthy, and suitable for a given social class, it must correspond not only to the art and technique of construction so as to satisfy the eye, but also to the necessities of public health and the dignity of those who inhabit it, and above all to the necessities of morality in practice, so that no family is forced to live in a place that is too cramped, in conditions of promiscuity that are not only immoral but also unreasonable.