14 September 2011 by

Does a right to habitation lapse when it is not in use or when the object of the habitation is destroyed?

The unusual and interesting facts of this matter served as an opportunity for the Court in Kidson & another v Jimspeed Enterprises CC & others [2009] JOL 23455 (GNP) to refresh us on the law relating to personal servitudes, in this instance the right of habitation (right of free residence). The essence of the enquiry was whether a habitatio lapses if it is unused (but not abandoned) by the holder of the right, where the property has been transferred to a new owner who has no knowledge of the habitatio and where the physical building, where the habitatio was to be enjoyed, has been destroyed.
The facts were that the Kidsons sold their farm to Jimspeed and reserved a right of habitatio over the farmstead in their favour, for Mr Kidson's lifetime. This right of habitation was duly registered against the title deed with the transfer of ownership to Jimspeed.

Jimspeed later sold the farm to X, who in turn, sold it to Y. As a result of mining activities on the farm where they had moved to in the interim, the Kidsons wished to return to the house on the erstwhile farm. However, they discovered that Jimspeed had destroyed the house, the farm had been sold to Y and Jimspeed had been liquidated.

Y was not prepared to permit the Kidsons any rights to the farm because he was unaware of the habitatio when he purchased the property.

The Kidsons asked the Court to determine whether their right of habitatio still existed as registered.

The Court held that on the facts, there was not sufficient indication that the Kidsons intended to abandon their right of habitatio. Moreover, the right had neither been prescribed in terms of the Prescription Act 68, 1969, nor was it cancelled in terms of section 68(1) or (2) of the Deeds Registries Act 47, 1937

The mere non-use of the dwelling does not automatically lead to a lapsing of the right and it is irrelevant that Y did not know about the right of habitatio. Habitatio is a personal servitude similar to usufruct or usus and constitutes a limited real right over the property of another.

Judge Van Rooyen quoted Sampson J in Galant v Mahonga (1922 EDC 69) confirming that a "personal servitude differs from a real servitude because it is attached to a person and not a dominant tenement; the right comprises a ius in re, which founds an action for rei vindicatio."

The Judge held that the Kidsons could therefore sue in this action for the recovery of the right (not the buildings) of habitatio against any owner of the land subject to the right.
All real rights have a res (a thing) as object. The object of the right to habitatio is the land, which is subject to the limited real right of habitation and it is possible for the right to lapse if it is abandoned or if a fundamental change in the land occurred which made it impossible to support a structure being built on it.

The Court found that in this matter the Kidsons never abandoned the right. They merely moved away because Jimspeed made it uncomfortable for them to live there. The core of the duty of the owner of the land is inaction and the holder of the right may not compel the owner of the land to rebuild the buildings - the Kidsons would be entitled to rebuild an alternative structure.

It would appear that whoever administrated the subsequent sales of the property from Jimspeed to X and then to Y, failed to advise the purchaser in each instance that a right of habitatio was registered against the title and that the sale was therefore subject to the right of habitatio.

Conveyancers must be on their guard when attending to a transfer to meticulously check the conditions in the title deed and ensure that onerous servitudes are brought to the attention of the purchaser.

Fatima Valli-Gattoo

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