PERSONAL SERVITUDES VS REAL RIGHTS OF OWNERSHIP
South African property law regulates the “rights of people in or over certain objects or things.” It is concerned, in other words, with a person’s ability to undertake certain actions with certain kinds of objects in accordance with South African law. Among the formal functions of South African property law is the harmonization of individual interests in property, the guarantee and protection of individual (and sometimes group) rights with respect to property, and the control of proprietary relationships between persons (both natural and juristic), as well as their rights and obligations.
A Hendricks v M Hendricks & Others (20519/14)  ZASCA 165 (25 November 2015)
The judgment deals with a bitter family feud that resulted in a mother, the holder of the right of habitatio over a property, seeking the eviction of her son and ex daughter-in-law from that property, despite the latter being the registered owners. What the court had to decide here was whether this was possible in our law.
A long-running family quarrel culminated in an application by Mrs Hendricks for the eviction of her erstwhile daughter-in-law and her son from a property. The background facts were that Mrs Hendricks sold her property to her son in November 1990. A lifelong right of habitatio was registered in her favour against the property’s title deed.
Mrs Hendricks lived in the property when her son took occupation thereof after registration of the transfer. Shortly thereafter her son married in community of property and the couple and Mrs Hendricks stayed in the home together.
Relations soured between Mrs Hendricks, her daughter-in-law and son and continued to deteriorate over the years. In 2009, Mrs Hendricks experienced the living conditions so intolerable that she decided to leave the property temporarily. She was granted refuge first by her daughter and later by her other son. She also obtained a family violence interdict against her daughter-in-law and later, via her attorney, sought permission to return to the property without being verbally abused. This was unsuccessful.
In February 2010, the couple divorced and in terms of the decree of divorce, their joint estate in community of property had to be divided equally between them. At some stage, Mrs Hendricks’ son left the property, possibly as a consequence of having been refused access to the property by his ex-wife, the latter having ultimately remained in occupation of the property together with their children.
In February 2012, Mrs Hendricks again asserted her right of habitation and called upon her daughter-in-law to vacate the property, failing which an eviction order would be obtained. In the end, an eviction order was sought, without success.
Mrs Hendricks appealed to the present court. She argued that she was at the time of the eviction application the person in charge of the property, and that her legal authority, as contemplated in the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE), emanated from her right of habitatio.
THE COURT HELD:
• In section 1 of PIE (The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act), ‘unlawful occupier’ is defined as ‘a person who occupies land without the express or tacit consent of the owner or person in charge, or without any other right in law to occupy such land …’
• ‘Person in charge’ is defined as ‘a person who has or at the relevant time had legal authority to give permission to a person to enter or reside upon the land in question’.
• The servitude right to habitatio is a limited real right which confers on the holder the right to dwell in the house of another, without detriment to the substance of the property.
• The novel question in the present matter was whether, as far as the PIE Act is concerned, a holder of this limited real right is a ‘person in charge’ of the property in respect of which the habitatio operates and whether that holder can obtain an eviction order against an owner who occupies the property without the holder’s consent.
• It is well established that ownership is the most comprehensive real right and that all other real rights are derived from it. But limited real rights are absolute in the sense that they are enforceable against any and all and detract from the owner’s dominium.
Owner as illegal occupier
• Thus, in the present instance, the owner of the property (the daughter-in-law), could not exercise full dominium over the property inasmuch as she could not occupy the property without the consent of the holder of the right of habitatio. Absent such consent, her occupation of the property was unlawful. The daughter-in-law’s bare dominium as owner of the property in law yielded to Mrs Hendricks’ right of habitatio.
Holder of habitatio right can bring eviction application
• Where someone other than the registered owner is the ‘person in charge’ (i.e. the person with the right to determine who stays on the property), it is the consent of such person rather than the registered owner which is relevant. It follows that the holder of the bare dominium could be an unlawful occupier if he or she occupied property without the consent of the holder of the right of habitatio.
• The appeal therefore succeeded on that point. However, before an order for eviction could be granted, a full enquiry had to be made as to whether it would be just and equitable to do so in the circumstances, as required in PIE.
The court accordingly referred the matter back to the magistrate’s court.
Wietz Viljoen WVA INC.
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