居住权依法有保障安居梦法治来护航
□ 本报记者 邢东伟 翟小功
近年来，随着经济社会的迅速发展，人们的生活水平得到提高，但仍有一些离婚妇女、孤寡老人等群体的住房需求难以得到满足，如何安身成了这些群体面临的现实难题。民法典将居住权确定为一项法定用益物权，为实现低收入群体“住有所居”“老有所依”提供坚实的法律保障。
《法治日报》记者梳理海南法院2021年以来审理的三起涉居住权纠纷典型案例，充分诠释了我国积极弘扬社会主义核心价值观，依法保障群众的基本住房需求，有效化解婚姻家庭矛盾，让群众“居者有其屋”，实现政治效果、法律效果与社会效果的统一。
离婚返家居住老屋
依据遗嘱确认权属
海口市一女子离婚后，因没有地方居住便搬回娘家生活。然而，该女子却被母亲和哥哥起诉，要求其搬离房屋。近日，海口市中级人民法院终审维持原判，驳回其母亲和哥哥的诉讼请求。
刘某和周某是夫妻关系，两人婚后育有儿子周某甲、女儿周某乙。1982年，刘某和周某在海口市某区共同建造了一处住房，女儿周某乙自出生后一直居住在此。2008年3月24日，周某乙同前夫离婚，离婚前的房屋归其前夫所有，周某乙在海口某小区申请了一套廉租房。后因周某乙无收入，没有钱交纳租金，离婚后一直居住在案涉房屋二楼，并在其父周某生病期间进行照料。
周某于2012年去世，生前曾口头告诉周某甲，若周某乙没有地方居住时，可以住在家中二楼。2017年，刘某及周某乙在公证处办理了放弃继承周某遗产的公证。2018年4月3日，案涉房屋的不动产权利人变更为刘某和周某甲。
刘某、周某甲认为周某乙的居住行为侵害了自己对房屋的所有权和使用权，故向海口市琼山区法院提起诉讼，请求判令周某乙停止侵害并立即搬离刘某、周某甲共同拥有的不动产。
During the trial, Zhou Mouyi provided a recording of him and Liu Mou. In the recording, Zhou Mouyi asked: "Does Dad admit that the case involves the second floor of the house?" Liu Mou replied: "I said that when you had no place to live, The second floor is for you to live in." At the same time, Zhou Moujia also recognized that his father had stated when he was dying that Zhou Mouyi could live on the second floor of the house involved in the case when he had no room to live in.
After trial, the Qiongshan District Court found that Liu and Zhou A were the owners of the real estate involved in the case, and Zhou B went to the notary office to give up his share of inheritance in 2017.
When Zhou Mouyi gave up his inheritance, there was a precondition, that is, the second floor of the house was involved in his residential use case, but this content was omitted in the notarization.
Zhou Mouyi's father's dying words should be regarded as an oral will.
Moreover, Zhou Mouyi has been living in the house involved since birth, marriage and divorce, and fulfilled his main duty of care when his father was seriously ill.
Although Zhou Mouyi applied for a set of low-rent housing, he was unable to live because he could not pay the rent.
To sum up, the Qiongshan Court found that although Zhou Mouyi gave up the right of inheritance of the house involved in the case, he should enjoy the right to live and use the second floor of the house involved in the case.
Liu Mou and Zhou Moujia requested Zhou Mouyi to move out based on their property rights, which was not supported, and the lawsuit of Liu Mou and Zhou Moujia was dismissed in accordance with the law.
After the first-instance judgment was pronounced, Liu Mou and Zhou Moujia appealed to the Haikou Intermediate Court.
The facts ascertained by the court of second instance were consistent with those of the first instance, and the appeals of Liu Mou and Zhou Moujia could not be established.
Accordingly, the Haikou Intermediate Court rejected the appeal and upheld the original judgment.
Ex-husband's house Ex-wife lives
Protected even if not registered
In the past, the husband and wife, a father and daughter, are now going to court over housing issues.
Recently, the First Intermediate People's Court of Hainan Province applied the regulations on the right of residence and concluded the first dispute case involving the right of residence in Hainan since the implementation of the Civil Code.
Chen Moumou (female, 70 years old) and Fu Moumou were originally husband and wife and had 5 children together. Later, the two parties divorced in 1990 due to emotional discord.
In 1991, Fu Moumou and Chen Mou (current wife) married. After the marriage, the two jointly invested in building a building in a town in Wenchang City. The owner of the house was registered as Fu Moumou.
Chen Moumou and Fu Moumou have not had a house of their own since their divorce, and have been living on the fifth floor of the aforementioned building under Fu Moumou's name since 2005.
Fu Mou A and Fu Mou B are daughters of Chen Moumou and Fu Moumou, and they live with Chen Moumou.
In January 2020, Fu Moumou and Chen Mou filed a lawsuit with the court on the grounds that Chen Moumou had no right to live in the house involved in the case, requesting the removal of the nuisance, that is, requiring the three people to move out of the house involved in the case immediately.
The court of first instance confirmed after trial that the house involved in the case was the joint property of the husband and wife obtained by Fu Moumou and Chen Mou after their marriage. Therefore, it was judged that Chen Moumou, Fu MouA, and Fu MouB moved out of the house involved in the case.
After the first-instance judgment was pronounced, Chen Moumou, Fu MouA, and Fu MouB appealed to the First Intermediate People's Court of Hainan Province.
The undertaking judge made a special trip to the location of the house involved in the case to check the scene, inquire about the specific situation of the parties, and further grasp the relevant facts.
In view of the fact that this case is an internal dispute among family members, the undertaking judge has done a lot of mediation work, but failed to reach a mediation agreement.
Subsequently, the Hainan No. 1 Intermediate Court held that Chen Moumou had been living in the house involved in the case since 2005, and Fu Moumou A and Fu Moumou B also followed suit, and this situation has continued for 15 years.
Chen Moumou, Fu MouA, and Fu MouB have formed a relatively fixed place for living and living in the house involved in the case, which proves that Fu Moumou and Chen Mou agreed to acquiesce to the house involved in the three-person living case during this period.
This case occurred before the promulgation of the Civil Code. At that time, my country had not yet established the right of residence system, and it was objectively impossible to register the right of residence.
Fu Moumou and Chen Mou have never raised any objection to the fact that Chen Moumou lived in the house involved in the case, and fulfilled the contractual obligation to deliver the house involved in the case to Chen Moumou for residence. to accept.
The fact that Chen Moumou is the ex-wife of Fu Moumou conforms to the contractual characteristics of marriage, relatives and other identity relationships, so it is deemed that Fu Moumou, Chen Mou and Chen Moumou have reached an oral residency contract. should also be protected by law.
In addition, Chen Moumou is more than 70 years old. Fu Moumou A and Fu Moumou B, as daughters, live together to take care of Chen Moumou's daily life. Therefore, Fu Moumou A and Fu Moumou B should also have the right to live in the house involved in the case. A person should help and assist his ex-wife and children.
Accordingly, the Hainan No. 1 Intermediate Court changed its judgment and did not support Fu Moumou and Chen Mou's request for Chen Moumou, Fu MouA, and Fu MouB to move out of the house involved in the case.
Unwilling to transfer the family and grandchildren involved in the lawsuit
Secured residence mediation settlement
In April 2021, the Ding'an County Court of Hainan Province accepted a case of inheritance disputes. The grandson sued the eighty-year-old grandmother and asked her to cooperate with the house and land transfer procedures.
The court found that the defendant Fu Mouying married the grandfather of the plaintiff Wang Mouhua when he was in his fifties. Since then, the plaintiff and the defendant have lived together for more than 20 years. Although the grandparents and grandchildren are not related by blood, they have a harmonious relationship.
After Wang Mouhua's grandfather died, Wang Mouhua and Fu Mouying signed an estate division agreement.
Later, due to worries about her future residence, Fu Mouying has not cooperated with Wang Mouhua to perform the estate division agreement, and both parties are involved in the lawsuit.
After receiving the complaint, since Fu Mouying has not been contacted, the judge who undertakes to send it by mail will serve it by mail.
Although the mailing list shows that the receipt has been signed, in order to ensure that Fu Mouying, who is in her 80s, successfully receives the copy of the complaint and the evidential materials and other documents, the undertaking judges, judge assistants, clerks and other staff have come to confirm the situation many times, but none of them have Find Fu Mouying.
After inquiring with the neighbors many times, I learned that Fu Mouying is not at home most of the time on weekdays, and only has a higher chance of being at home at four or five in the afternoon.
When the court staff came to the door for the seventh time, they found Fu Mouying, served the response documents to him, and patiently explained the meaning of the documents.
After communication and inquiries, Fu Mouying said that she was not unwilling to transfer the house, but worried that Wang Mouhua would sell the house after the transfer, and she had no fixed place to live.
After understanding the situation, the magistrate believed that the case was not complicated, and the contradictions between the two parties were not irreconcilable. In order to let the old man feel relieved and cooperate with the transfer, the issue of the right of residence must be resolved.
In order to allow Fu Mouying to support her old age and enjoy her old age, and to better carry out mediation work, the undertaking judge sent a letter to Ding'an County Real Estate Property Registration Center and Ding'an County Housing and Real Estate Service Center, asking whether the right of residence belongs to her Unit business and how to handle it, but both units replied that they have not yet been authorized to handle residency business.
On the day of the court session, Fu Mouying, who "lost contact" again after being served, came to the court on time. Considering Fu Mouying's age and inconvenience, the court judge decided to conduct mediation first, but the mediation failed.
During the trial, after many interpretations of the law by the judge, Wang Mouhua expressed his willingness to mediate and promised that Fu Mouying would live in the house.
After the trial was over, the judge who accepted the case reported the case to the Women's Committee of the court, expressing that he wanted to go to Fu Mouying to do mediation work again.
On June 11, 2021, the Undertaking Judge came to Fu Mouying's house again to let the plaintiff and the defendant open their hearts and get closer to each other in a homely way.
After the judge's patient persuasion, Wang Mouhua promised not to sell or rent the house during Fu Mouying's lifetime.
Fu Mouying finally put down her psychological burden and agreed to cooperate with the plaintiff to transfer the property, and the case has been satisfactorily resolved.
Relevant provisions of the Civil Code
Article 366 The holder of the right of residence has the right to enjoy the usufruct right of possession and use of the residence of others in accordance with the contract to meet the needs of living and living.
Article 367 To establish the right of residence, the parties shall conclude a right of residence contract in writing.
居住权合同一般包括下列条款：(一)当事人的姓名或者名称和住所；(二)住宅的位置；(三)居住的条件和要求；(四)居住权期限；(五)解决争议的方法。
第三百六十八条 居住权无偿设立，但是当事人另有约定的除外。设立居住权的，应当向登记机构申请居住权登记。居住权自登记时设立。
第三百六十九条 居住权不得转让、继承。设立居住权的住宅不得出租，但是当事人另有约定的除外。
第三百七十一条 以遗嘱方式设立居住权的，参照适用本章的有关规定。
老胡点评
我国民法典中确立的居住权制度，是为了更好地满足人民群众“居者有其屋”的最基本民生需求，体现了党和国家关于加快建立多主体供给、多渠道保障住房制度的要求，也反映了我国立法过程中“以人民为中心”的鲜明价值导向。
随着我国经济社会的不断发展，人们的生活居住条件也不断得到改善，但仍有一部分低收入群体，尤其是个别老年人、残疾者以及其他因病而丧失劳动能力者无法通过购买、租赁等方式获得自己安居的房屋。居住权作为一项新型用益物权，为满足这些群体对住房的需求打下了坚实的基础。
徒法不足以自行。要将民法典中规定的居住权的内容落实到现实生活中、成为保障人们生活居住需求的护身符，还需要各级人民法院在审理相关案件中准确适用民法典，把居住权的要求及时融入裁判之中，切实保护人民群众的民生权益，让人民群众在每一起司法案件中都感受到公平正义，感受的司法的温暖和善意。同时，相关部门还要进一步以案说法，深入开展民法典宣传活动，使包括居住权在内的民法典的各项规定日益深入人心，使人们的安全感、幸福感更有保障，使社会更加和谐稳定。
胡勇