Legal certainty for a right of habitatio
Regulation 73(2) of the Deeds Registries Act 47 of 1937 (the Act) provides that a diagram is a requirement for deeds creating or defining servitudes and real rights, subject to certain exceptions which do not merit a discussion for purposes of this article.
The creation and registration of a right of habitatio, defined as:
“Conferring upon its holder the right to dwell in the house of another together with his family without detriment to the substance of the property “ (Voet 781).
The word house in the above definition requires closer scrutiny from a registration point of view, as well as legal certainty to the holder of the habitatio. It is clear that a habitatio can only be registered in respect of a dwelling and not in respect of the land on which the dwelling has been erected.
It is submitted that one cannot register a habitatio without the procurement of a diagram of that portion of the land on which the dwelling is erected, unless the dwelling is a sectional title unit as the sectional plan will suffice for purposes of regulation 73(2) of the Act. Obviously where the habitatio is in respect of a portion of a section, an additional diagram will be required for legal certainty purposes.
More often than not a habitatio is registered in respect of a “granny flat” and requires a diagram to provide the holder with legal certainty as to his/her right.
Jones, Conveyancing in South Africa Fourth Edition on page 218 avers that a diagram can be dispensed with where the conveyancer certifies that the building or opstal is the only building on the land. This practice is not a sound practice as further buildings can be erected on the land or the building might even be destroyed and re erected.
As far back as 1951 the matter was deliberated by the Registrars at their annual conference and it was resolved as follows:
“As the law is at present the registration of a habitatio affecting areas other than the ground floor of a building (e.g. the back room on the ground floor of the building) is not feasible except on production of a diagram of the land affected.”
This resolution, it is submitted, is not based on a sound footing, given the fact that subsequent to the registration of the habitatio, the building might be extended or additional buildings built, which will affect the security of the right. It is opined that a diagram will always be a necessity for the creation and registration of a right of habitatio.
Interesting to also note that in terms of CRC 3 of 1995 the registration of a habitatio over agricultural land for a period longer than 10 years, or the natural lifetime of the holder, requires the consent from the Minister in terms of section 6A of the Subdivision of Agricultural Land Act 70 of 1970.
From a conveyancing perspective it would be a sound practice to always procure a diagram for the creation and registration of a habitatio. Given the fair amount of uncertainty that prevails, the matter will be tabled at the next Conference of Registrars for a uniform practice to be decided upon.
All real rights have a thing (res) as an object and I would like to differ in opinion to Mr West when he says in the third paragraph of this article that" a habitatio can only be registered in respect of a dwelling and not in respect of the land..." reference will be made to the case of Kidson & Another v Jimpseed Enterprises CC & Others  JOL 23455(GNP). I find that it is correctly submitted in the above case that the object of a habitatio is the land and not the dwelling. Which is why the habitatio as a real right is registered against the land. Which is also why it does not lapse should the dwelling dilapidate.
It would be inconsistent to accept that when the house burns down, the right falls away. If the dwelling should become destroyed for any reason and the land is still capable of being burdened with another building then the real right still exists and the dwelling can be rebuilt. this shows that the (res) as object of the right was never the building in the first place. Yes a diagram is an important part for registration of a habitatio because it aids in as far as cadastral precision is concerned.
However, it is opined that it is wrong to conclude that the dwelling should exactly stand on the spotted mark (footprint) of the demarcation on the diagram. My view is that it is sufficient that the building should be within the boundaries of the demarcation although not necessarily on the exact spot.
I beg to differ on the definition of a habitatio. It is a right to dwell in the" house" of another with his family without detriment to the substance of the property. I concur that the house must be defined in terms of reg 73 (2) of the DRA by virtue of a diagram of that portion of the land on which the house is erected. I reiterate a habitatio can never be only over land without a dwelling.
Could we also obtain some clarity as to the type of "diagram" that will be required. Will it necessarily have to be a diagram drawn up by a surveyor or architect, or will normal municipal building plans, or even a sketch by the parties, suffice?
Please refer to the definition of diagram in section 102 of the Deeds Registries Act 47 /37.
As you need a diagram for the registration, then it must also be assumed that one would need planning approval?
With regard to the owner of the property where the residents have rights of habitation --- who is responsible for the rates and taxes of the property?