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habition vs co owner

“Who’s in charge: the person with the right to live in a property or the property owner?

We sometimes get in interesting queries; something that is out of the ordinary.

Here is one such query we received a few days ago.

 “What rights does a person with rights of habitation have over those who are the co-owners of a property? Where the person with habitation is also a co-owner. Two out of the five co-owners are living on the same property, while one party refuses to pay municipal bills. I will name Party one A, and Party two B. Only B is paying while A refuses to pay for anything. B does not want to lose the property for municipal debt. What law protects B in this case, where A, who doesn’t pay; can he be held accountable? I have read that one should set up an agreement, but if the agreement is written and the A then refuses to sign (hypothetical scenario), what then?”

So the questions for this blog is:

 “Who’s in charge: the person with the right to live in a property or the property owner?

A lifelong right to live in a house, owned by someone else, is referred to as a right to” habitatio” or habitation. I will refer to it in this blog as the right to habitation.

Once this right is registered in the Deeds Office, it is enforceable against everyone, including the registered owner of the immovable property (“property”).

This position was confirmed in the 2015 judgment of the Supreme Court of Appeal in the case of Hendriks v Hendriks and Others (case no. 20519/2014, 25 November 2015), in which, the court held that the owner’s rights in respect of a residential property in the Western Cape must, in law, yield to the

inhabitant’s right of habitation.

In that case, the inhabitant was a 72-year-old woman (“the mother”) who had sold her home to her son; but had registered a right of habitatio / habitation in her favour in the title deed; when she transferred the property to him.

The mother lived in the house together with her son and daughter-in-law. However, the living arrangement changed after a falling out between the two women, causing the mother to temporarily move out. Subsequently, her son and daughter-in-law, who had been married in community of property, divorced and the son moved out.

The mother applied to the magistrate’s court to evict her erstwhile daughter-in-law, the registered co-owner from the property. However, the magistrate’s court held that the right of habitation could not trump the right of ownership.

This finding was taken on appeal to the Western Cape Division of the High Court, which endorsed the view of the magistrate’s court and dismissed the appeal.

The mother then approached the Supreme Court of Appeal, where she was successful.

The Supreme Court of Appeal held that the right of habitation was recognised as a limited real right that detracted from the right of ownership of the property.

As a result, the property owner could not occupy the property without the consent of the mother, as the holder of the right of habitation. The court also held that the mother could apply for the eviction of the registered owner of the property.

This case confirms that the holder of the right of habitation can be regarded as the person who is “in charge” of the property, as defined in section 1 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, 19 of 1998 (commonly referred to as the PIE Act).

Furthermore, the court found that, at the time of the eviction application, the mother was the person in charge of the property and her legal authority, as contemplated in the definition, emanated from her right of habitation.

Therefore, any party who intends to conclude agreements or other transactions in respect of property should refer to the title deed to confirm if there are any rights of habitation or other limited real rights registered against it.

If any such rights are identified, the extent of these should be taken into account before concluding agreements or other transactions in respect of the property.

Please visit our website at www.legaladviceoffice.co.za or send us an email to This email address is being protected from spambots. You need JavaScript enabled to view it. and we will respond to your legal queries within 48 hours.

About our author:

Hugh Pollard (Legal Consultant), has a BA LLB and 42 years’ experience in the legal field. 22 years as a practicing attorney and conveyancer; and 20 years as a Legal Consultant.

082-0932304 (Hugh’s Cell Number)

This email address is being protected from spambots. You need JavaScript enabled to view it.

www.legaladviceoffice.co.za

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