Case Review] Xiao Ming is the son of Ding and Tan. Ding and Tan voluntarily agreed to divorce, and when the two parties registered their divorce at the county civil affairs bureau, they agreed: "First, donate the house jointly owned by the husband and wife to Xiao Ming; Second, the owner of the house must be changed to Xiao Ming, and neither of the husband and wife can ** the house without authorization; Third, after the divorce, Ding must have the right to live in the house; Fourth, Xiao Ming was raised by Ding until he worked, and the expenses were borne by both husband and wife. Later, because Ding did not apply for the registration of the right of residence, a dispute arose between the two parties over whether Ding enjoyed the right of residence.
Judge's Statement] This case involves the establishment of the right of residence. The right of residence refers to the real right that a natural person enjoys in accordance with a contract or a will to meet his or her own living needs by occupying or using the residence of another person. The right of residence is generally obtained through two forms: a contract and a will. Article 368 of the Civil Code stipulates that "the right of residence shall be established free of charge, unless otherwise agreed by the parties." Where the right of residence is established, an application for registration of the right of residence shall be made to the registration authority. The right of residence is established at the time of registration. Article 371 of the Civil Code stipulates: "Where the right of residence is established by will, the relevant provisions of this chapter shall apply by reference." Therefore, the right of residence can also be created in the form of a will.
In this case, when Ding and Tan registered their divorce at the civil affairs bureau of a certain county, they agreed to donate a house jointly owned by the husband and wife to their son Xiao Ming, and agreed that Ding had the right of residence in the donated house, which was in accordance with the law. However, Article 368 of the Civil Code stipulates that the right of residence shall be established free of charge, unless otherwise agreed by the parties, and also restricts that the right of residence shall be established by applying to the registration authority for registration of the right of residence, and the right of residence shall be established at the time of registration. Although Ding and Tan agreed on Ding's right of residence for the house, they did not apply for the registration of the right of residence at the registration agency, and the establishment of their right of residence was not completed. Therefore, Ding's right of residence needs to apply for registration of the right of residence at the registration authority, and his right of residence is established at the time of registration.
Article 368 of the Civil Code The right of residence shall be established free of charge, unless otherwise agreed by the parties. Where the right of residence is established, an application for registration of the right of residence shall be made to the registration authority. The right of residence is established at the time of registration.
Article 371 of the Civil Code: Where the right of residence is established by will, the relevant provisions of this chapter shall apply by reference.
**: Hunchunlin District Basic Court
Author: Ge Yuyao
Editor: Liu Yixiao
Editor-in-charge: Zheng Libo
Review: Yao Qiming
Column co-organizer: Yang Yunliang, lawyer of Beijing Zhongwen (Xi'an) Law Firm