One house, a right of habitation vs a right of ownership… Who wins?

When it comes to property, it is possible that there can be different types of rights over the same property. It is possible that one person can own a house, while another has the lifelong right to live in that house. In a situation like this, an important question arises: who is in the stronger position? Is it the owner of the house, or the person with the lifelong right to live in that house?

A lifelong right to live in a house owned by another person is called a right of habitation. This right becomes enforceable against everyone, including the owner of the house, once it is registered at the Deeds Office. In law, as regards a particular house, a person’s right of habitation is stronger than another’s right of ownership. That is, the owner’s rights yield to a person’s right of habitation.

A case on the right of habitation: the facts

This is what the Supreme Court of Appeal (SCA) held in Hendricks v Hendricks and Others. In this case, a mother had sold her house to her son, but registered in her favour a right of habitation in the property’s title deed. She occupied the house with her son and his wife. The son and wife were married in community of property and co-owned the house. There was a breakdown in relationship between the mother and her daughter-in-law. The mother moved out. Subsequently, the son and his wife divorced and the son moved out. The mother then applied to the magistrate’s court to evict her ex-daughter-in-law, who was a registered co-owner of the property.

The magistrate’s court held that the right of habitation held by the mother could not trump the right of ownership held by the ex-daughter-in-law. On appeal to the Western Cape Division of the High Court, the High Court affirmed the finding of the magistrate’s court. The mother then appealed to the SCA. This time she was successful.

The findings

The SCA held that the right of habitation is recognised as a limited real right that detracts from the right of ownership of the property. This limited real right (when registered) is enforceable against the entire world. The SCA held that habitation is a stronger right than ownership and so the right of ownership has to yield to the right of habitation. So, the daughter-in-law (the property owner) could not occupy the property without the consent of the mother (the holder of the right of habitation).

The Court also held that the mother could be regarded as a 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. She derived her legal authority for being “in charge” by virtue of her right of habitation. She alone could legally grant permission to a person (even the registered owner) to reside in the property.

The mother could therefore apply for the eviction of the registered owner of the house.

A take-home message

If you are looking to conclude any transaction in respect of property, it is a good idea to do your research and inspect the title deed. Check to see whether there are any limited real rights such as rights of habitation registered against the property. Be sure to take these into consideration before you make your decision regarding the property transaction.

If you require any assistance on a matter related to any of the above, please do not hesitate to contact us at [email protected].

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