A lifelong right to live in a house owned by someone else is referred to as a 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 recent Supreme Court of Appeal 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 this 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 habitation in her favour in the title deed. 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 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. Further, 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.

Written by Lavarn Gounden, property and real estate associate, ENSafrica