A gift agreement with a right of lifelong use of a property. Learn how to set up the easement correctly, avoid disputes and protect your rights.
Are you considering transferring a flat or house to your children while wanting to keep the certainty of a home and protection for the future? Even though you will no longer own the property, it is natural to want a guarantee that your housing will not be at risk. In such a case, it is advisable to create a right of lifelong use of the property in your own favour, which will allow you to continue using it regardless of any change in ownership.
The right of lifelong use of a property is one of the most frequently created easements. It is a contractual easement that serves primarily to secure housing for the person in whose favour it is created. This right can be established:
The essence of this easement is that the beneficiary has the right to use the property free of charge for their entire life or for another agreed period. The right of lifelong use is a so-called personal easement (in personam), which means it belongs to a specific person and is tied exclusively to them. It cannot be transferred to another person and generally expires upon the beneficiary's death or upon expiry of the agreed period. An easement consisting in the right of lifelong use comes into existence upon registration in the Land Registry (kataster). Its duration is usually tied to the lifetime of the beneficiary.
A right corresponding to an easement consisting in the lifelong use of a property is most often created in connection with the gifting of the property. However, it may also be created where the property is sold. A gift agreement comes into existence once the parties agree on its essential terms. The key point is that the parties agree, in particular, on what is being gifted and that the transfer is gratuitous. The agreement is concluded only once the parties agree on all matters they consider important, not merely on its basic elements. For real estate, a gift agreement must always be in writing, and ownership passes only upon registration in the Land Registry.
The right of lifelong residence does not have to cover the entire flat or house. It can also be agreed for a precisely defined part of the property, for example a single room. It is essential, however, that this part is clearly and unmistakably specified in the legal act, including any entitlement to use shared areas (e.g. the kitchen or bathroom facilities). A well-drafted, detailed contractual definition of the scope of use is crucial, as ambiguities in this area frequently lead to disputes between the parties. At the same time, the scope of the easement is always limited by the maximum scope of the ownership right of the person burdened by the easement, and cannot exceed it.
Unless the burdened party and the beneficiary of the easement agree otherwise, the beneficiary who uses the property bears the reasonable costs of its maintenance and repairs. This obligation can, however, be excluded entirely by agreement. If the property is used by its owner alongside the beneficiary, the owner contributes to the costs of its preservation and repairs in proportion to their share of the use.
Although the Slovak Civil Code does not itself preclude the creation of a lien, banking practice is far stricter than theory. Obtaining a mortgage loan against a property burdened by a right of lifelong use (an easement) is significantly restricted in practice. Banks generally do not regard such a property as suitable loan security, since the beneficiary enjoys legal protection and their right survives even the enforcement of the lien. The most common solutions are cancelling the easement by agreement or by court decision, or securing the loan with a different property.
If a bank's lien is registered against the property, a subsequent registration of an easement (for example, a right of lifelong use) without the bank's consent usually constitutes a breach of the loan agreement's terms. Such a breach can have serious consequences, in particular:
In this case, the question of cancelling the easement arises. § 151p(3) of the Slovak Civil Code provides that if, due to a change of circumstances, a gross disproportion arises between the easement and the benefit to the beneficiary, the court may decide that the easement be restricted or cancelled in exchange for reasonable compensation. A change of circumstances giving rise to a gross disproportion between the easement and the beneficiary's benefit may include, for example, confrontational, aggressive behaviour by the beneficiary of the easement, physical and psychological attacks, or the development of addictions (alcohol or narcotic and addictive substances).
The practical solution is to file a petition to cancel the easement. The burden of proof rests on the claimant, who must therefore prove the intensity and duration of the conflicts, the attacks, the development of an addiction, or other facts that would justify cancelling the easement.
Gifting a property combined with creating a right of lifelong residence is a common legal solution in family relationships. Although it is a practical tool for arranging property matters during one's lifetime, it requires careful legal assessment and properly drafted contractual terms.
A significant advantage of this solution is, above all, that the donor retains the certainty of a home, keeping the right to use the property even after transferring ownership. It also allows owners to decide the fate of their assets without waiting for inheritance proceedings, which often prevents future disputes between heirs and minimises the costs of inheritance proceedings.
On the other hand, the legal and practical risks must also be emphasised. By transferring ownership, the donor loses control over the property, and their position is limited to the scope of the easement. If the relationship deteriorates, exercising the right of residence may become problematic. For the transferee, the easement represents a fundamental restriction: they cannot fully use the property or freely dispose of it, and its sale or financing (e.g. by a mortgage loan) tends to be significantly complicated.
An easement-creation agreement may be concluded as a separate legal act, or it may form part of the agreement transferring ownership of the property over which the easement is being created. It is also possible to create several easements in a single agreement.
When preparing the agreement and filing the application for registration in the Land Registry, however, the requirements of the cadastral regulations must be respected: the application for registration must cover all the legal acts contained in the agreement that are subject to registration, as well as all the properties concerned. It follows that only easements expected to be approved for registration at the same time should be combined in a single agreement.
The administrative fee is paid to the Land Registry separately for the registration of the ownership right and separately for the registration of the easement, even where there is a single agreement and a joint application for registration.
The law does not lay down any general deadline within which an application for registration in the Land Registry must be filed after the agreement is concluded. This means the application can be filed even some time after the legal act itself. Neither the Cadastral Act nor the related legislation prescribes any specific period (for example, 3 years) within which the application for registration must be filed. It should, however, be borne in mind that a time gap between concluding the agreement and filing the application can in practice give rise to various complications.
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