The transfer of real estate against an obligation of maintenance and care is a widely used contract, often employed by elderly people who wish to secure care until the end of their lives, transferring ownership of their property in return. This contract is frequently concluded between relatives or close persons and may be preferred over gifts, since it is more difficult to challenge by heirs with a reserved share than wills or gifts.
Main characteristics of the contract for the transfer of property against maintenance and care
- Parties to the contract: Such a contract may be concluded only between natural persons. The subject of the contract may be any real estate, not only residential, and may include several properties at once. The transferor may also reserve a lifelong right of use over the property.
- Preliminary contract: A preliminary contract for the transfer of property against maintenance and care may be concluded, but such a contract cannot be declared final by the court if the owner of the property objects.
- Contract between spouses: It is permissible for such a contract to be concluded between spouses, provided that the property is the personal property of the transferor. Property acquired during the marriage as matrimonial community property cannot be the subject of this contract. However, if a property is acquired during the marriage through a contract for maintenance and care, it becomes the property of both spouses.
- Form of the contract: The contract is concluded before a notary and is executed as a notarial deed. The documents presented on the sale of a property are required.
- Transfer of ownership: Ownership of the property is transferred immediately upon conclusion of the contract. The person who assumes the obligation of maintenance and care becomes the owner and has the right to dispose of the property – to sell, gift, bequeath and mortgage it.
Scope and type of the maintenance and care obligations
The contracts may be concluded:
- For the provision of maintenance and care in the future.
- For care and maintenance already provided in a past period.
- For a combination of maintenance in the past and the provision of care in the future.
Contracts often do not specify the precise scope of the care and maintenance, which leads to the performance of general obligations such as the provision of food, utility costs, clothing and care for health and the household. It is important to specify whether the care will be personal or whether third parties will be used. According to case law, an exception permitting the use of third parties is allowed for special needs, such as medical assistance.
Risks and particularities
The obligation of maintenance and care continues until the death of the transferor. The recipient of the property assumes the risk that the value of the care may exceed that of the property, especially where the transferor has a long life or where needs increase due to health problems. The contract will be considered null and void if, at the time of its conclusion, it was known that the transferor was on the verge of death.
Changes in performance
Where necessary, the obligation of maintenance in kind may be converted into a monetary one. This most often occurs when relations between the parties deteriorate. If the transferor refuses maintenance and care in kind, the recipient must immediately request the court to change the obligation to a monetary one, in order to avoid rescission of the contract and loss of the property.
According to case law, sending the transferor to a hospice may be regarded as a breach of the obligation to provide care and may lead to rescission of the contract.
If you need legal advice or assistance in connection with the transfer of property against maintenance and care, contact us on 0887550706, e-mail: [email protected]
