That could happen if, to take one example from a recent SCA (Supreme Court of Appeal) matter, you give someone else a right of habitation (“habitatio”). But why, you may ask, would you do that?
Useful tools for property owners
Our law provides you with a range of useful tools to make the most of your property, including several different types of occupational and usage rights. For instance you will come across terms like “usufruct”, “usus” or “habitatio”. The distinctions between them are fine and not important for now, but what is important is that you don’t use any of them without getting specific advice on which – if any of them – will suit your particular needs.
How might you use these tools? Consider these two examples –
From bitter family feud to eviction application
The facts in the SCA case were these –
Who’s in charge?
Now our law requires that to evict an occupant you must comply with PIE (the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act). PIE requires that you prove either that you are the owner of the property or that you are the “person in charge” of it.
In this case of course the owner was the ex-daughter-in-law. But, held the Court, “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”.
Finding on the facts that the ‘person in charge’ was the mother, that she alone could give permission to live in the house and that she hadn’t given her ex-daughter-in-law any such permission (any previous implied consent having been withdrawn), the Court held that the ex-daughter-in-law is indeed an “unlawful occupier” and therefore subject to an eviction hearing.
In other words, a registered right of habitation trumps the owner’s rights of occupation to the extent that the owner can be evicted from his/her own home.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)