USE AND HABITATION. - Use is a limited form of usufruct (v.) and the right of habitation is a particularity of use that has as its object a house. Use differs from usufruct by the limitation of enjoyment and by its adherence to the person or persons such that it is in every case non-transferable.
Usufruct, in fact, comprises two rights, indicated by the two terms uti and frui: use stops at the first and, at least in the Roman sources, did not include the right to enjoy the fruits of the thing that constituted the object of the use: nudus usus id est sine fructu (D. 7, 8, 1, 1). It was only through the intermediate law that in modern codes the right of use was extended to the fruits of the thing (cf. Italian Civil Code, art. 1021).
The object of use may be any thing in commerce. The constitution of the right of use may come about in various ways: by contract, by testament or by prescription in the forms required for usufruct; but it cannot come about by law, except exceptionally (in the case of the widow who has not separated from her husband through her own fault, who enjoys the right of habitation over the husband's estate for one year, ibid., art. 198). Given the substantial identity that exists between use and usufruct, many of the norms relating to this second institution apply, so far as compatible, also to the first (ibid., art. 1026); thus with regard to extinction (ibid., art. 1026). The rights and obligations are likewise almost the same as those of the usufructuary.
With regard to obligations, the user is thus bound, like the usufructuary, to furnish, after first drawing up an inventory, the guarantees of preservation and restitution, the undertaking to use the goods tamquam bonus pater familias; to contribute in proportion to his enjoyment, together with the owner, to ordinary repairs, annual charges, cultivation expenses, etc. (ibid., art. 1025). The user may not alienate the fruits that exceed his own needs; and he is bound, even in conscience, for damages caused to the property through his own fault. With regard to the rights of the user, one who has the right of use of a thing may make use of it, and gather its fruits, if it is fruit-bearing, insofar as is necessary according to his social condition (ibid., art. 1021). Both in use and in habitation the right extends also to the family of the one who possesses this right (arts. 1021-22). Included in the family are children, born or adopted, or those who have entered it by affiliation, even after the right of habitation began, although, at the beginning of the right of acquisition, the one who enjoys such a right had not even married. Also included are the persons who are supported by the one who has such a right or who render some service to him and to his family (art. 1023).
In ancient times the right of habitation extended also to the enjoyment of a certain usufruct, inasmuch as the one who had the right to dwell could also sublet wholly
6 or partially. The modern right, on the other hand, has removed the faculty of ceding the use of habitation or subletting, because they are personal rights (art. 1026). But, if the owner does not object, a mortgage may be constituted over these rights. Habitation must be constituted in writing, and in writing one may also renounce this right. In writing, too, the agreements concerning such a right must be stipulated. When habitation is acquired, the inventory must also be given. The right of habitation also entails the obligation to dwell in the house, without causing any damage that is not strictly bound up with the wear of use. The one who has the right of habitation is also bound to make ordinary repairs and to pay the taxes inherent in the habitation. The same may be said also of use (art. 1025). The civil laws concerning use and habitation are binding in conscience, together with the new ones made with regard to usufruct (v.).
For a habitation to be worthy, healthful and suitable to a determined social class, it must correspond not only to the art and technique of construction, so that it satisfies the true, but also to the necessities of public health and of the dignity of those who dwell in it, and above all to the necessities of morality in practice, in such a way that a family is not forced to live in a place too cramped, in promiscuity that is not only immoral but also unreasonable.