It is expected that this article will spark a major legal debate that will probably remain merely that ... “a debate”. As far back as my University years (which some of you might not even regard as that long), one was always taught that a servitude of habitatio is a burden in respect of a dwelling. That a servitude of habitatio encumbers a dwelling and not the land. This school of thought has always been acceptable since one cannot register a right of this nature without the existence of a dwelling, in relation to which it is created. One has also been taught that everything that attaches to the land forms part of the land. Therefore, should you sell your house, you are by implication also selling the land on which it is built. This school of thought is also acceptable seeing as it even makes sense when viewed practically. If one burdens his/her house “dwelling” with servitude of habitatio is one not, by implication, also burdening the land on which that house is attached? With the two schools of thought, one would wonder what exactly the object of a right of habitatio is. A rather fresh view has been adopted by the courts in recent years.
In the case of Kidson v Jimspeed Enterprises CC & Others 2009 JOL 23455(GNP) the court had to decide whether the facts of the case were tantamount to a lapse of the habitatio by reason of abandonment. In the endeavour to make this decision, there were many other issues that the court explored, particularly the issue relating to what the object of the habitatio is. In his discussions, Van Rooyen J made the following statements:
- In order for a limited real right to be valid against third parties, it must however be registered in a Deeds Registry.
- All real rights have a res (a thing) as object. A res is of a tangible nature and does not amount to a mere ‘air-space’. What is the res of a habitatio? The object of the right to habitatio (right of free residence) is the right which is subject to the limited real right of habitatio
- That is why it is registered against the title deed of the land with cadastral precision as to which part of the land is subject to the habitatio.
This changed my view of the notion that a habitatio is registered in respect of a dwelling. It is thus clear that Deeds Registries register ownership to land, as well as real rights in land. The Deeds Registries do not register transactions with regard to buildings (except of course in sectional title matters). It is opined that the courts are beginning to see, and perhaps to interpret the concept of a habitatio and in particular the theory of an object of habitation differently. I am astonished by this fresh approach as it adds more significance to why we need to register these rights at all in the Deeds Registries. If we stick to the notion that the habitatio attaches to the dwelling and not the land then one may ask what happens when the dwelling is destroyed. Are we not creating an opportunity for the owner of the servient tenement to be entitled to cancel the right upon destruction of a dwelling on the basis that it has lapsed? In the above referred to case, the court held further and made the following findings:
- After examining the Roman-Dutch authorities. Van Rooyen J J held that the essential element for the lapse o(the habitatio would be when a fundamental change In the land makes it impossible to exercise a right of habitatio. This is so since the land on which the house is situated is the true object of the real right. When this approach is adopted, it would be inconsistent to accept that when the house bums down or is otherwise demolished, the right fails away.
- The true test should be whether it has become impossible to rebuild because, as a result of the mutation to the land itself, the land has become incapable of supporting any structure which can be utilized as a dwelling. The incapability must lie in the land itself not in the structure built on it. If the structure is destroyed and the land retains its original capacity to be burdened as in the past, the servitude does not lapse. Generally it would also be inequitable to benefit the owner of the servient tenement by cancellation of the limited real right as a burden to his ownership due to the mere destruction of the building utilized as a dwelling. (My own underlining).
I unequivocally concur with this finding and would like to explicitly state that no contrary view has so far been more convincing to me than this. The fact that an approved diagram of the land is required upon the registration of a habitatio and not the building plans of the dwelling is an indication on its own that the buildings are not really the main concern here but rather the land on which buildings are erected. The view 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, seems not only wrong, but also incoherent to the requirements of regulation 73(2) of the Deeds Registries Act 47 of 1937, as well as to the intention of the legislatures. The diagram of the land which depicts an area of the servitude does not necessarily guarantee that there is a building existing on that land at the time of registration of the servitude. What it merely guarantees is that the servitude can be plotted on an existing piece of land. This is what I perceive the legislatures intended to achieve. This view that I am advocating does not appear to be all that new either. It has been stated in many other older law books, but was just never given the type of elevation as the opposite received.
For example in Wille’s Principles of South African Law by George Wille, Francois Du Bois, Graham Bradfield (9th edition) it is also stated on page 615 that upon destruction of a dwelling, a right of habitatio may be revived if the land is still capable of holding further buildings (see also Salmon v Lamb’s Executor and Naidoo, (1906) EDC 351). The right therefore exists for as long as the land can accommodate it. This has already sparked a deliberation between myself and a colleague and you as the reader are welcome to provide your view in this regard. This article strives to encourage a relook at the way things have been interpreted through the years and to refresh and see if perhaps we have been holding the stick at the wrong end. I accept that the concept of habitatio is not new at all in the law, but submit that the known interpretation or application thereof has perhaps been flawed for far too long.
G K Makallane
Assistant Law Lecturer, Deeds Training
I agree with the writer fully. The interpretation that a right of habitatio attached only to the dwelling house - and not the garden or the driveway was/is non-sensical. Habitatio's have always been registered in respect of the land on which the building is situate - and if it pertained to only a portion of the building or only one of a number of buildings, then a diagram was required - eg a granny flat. The terms of the habitatio would deal with rights of access over the land not subject to the habitatio in these situations. No such provision is made if the habitatio relates to the whole dwelling on the erf against which the habitatio is registered.
Does this apply to a usus as well?
Mark, Your scenario will not be a habitatio, but rather a usufruct or usus. One must differentiate between these three distinct common law personal servitudes and not confuse the one with the other.
I agree with Ms. Makallane and Mr. Schafer. The object of any servitude is always the land. The dwelling cannot be separated from the land. The holder of the usufruct obtains all the rights of the owner except the right to alienate and the right to destroy the property. A right of habitatio is much more restricted - the holder of the habitatio obtains only the right to inhabit the land. In other words, although the land is the object of the habitatio, the rights granted in respect thereof is restricted to inhabiting the land. Likewise, the rights granted in terms of a right of way is restricted to, well, a right of way. If the dwelling so inhabited is destroyed, the servitude does not lapse, provided that the land is capable of holding further buildings. I submit for this reason, that the practice of calling for a diagram depicting the portion of land on which the dwelling is situated before a habitatio may be registered, is incorrect.
Say the servitude under discussion wasn't a right to inhabit, but a right of way. A personal servitude of right of way, not a praedial one. Servitudes may be registered in general terms without a diagram depicting it and without even describing it with reference to a diagram. This is applied to rights of way, but not to a habitatio. Why? Rights of way are often registered in general terms, even though such right of way does not, in fact, comrpise the whole of the land - so why not a habitatio? No one has ever argued that the object of the right of way is in fact "the road on the land" and not "the whole of the land", and that in fact, it is impossible to register a right of way without a diagram depicting it exactly. Nor has anyone argued that "there is no road on the land, therefore it is impossible to register a right of way on the land". A habitatio is simply a type of servitude, and in my opinion, there is no reason it should be treated differently to any other type of servitude.
I agree with what the writer is saying. If the right of habitation lapses when the building is destroyed, this will give the landowners the opportunity to destroy the building in order to get rid of the holder of the servitude.
A simple way to avoid problems where buyers are unaware of servitude law would be to make a law that all estate agents peruse the title deeds to a property before accepting a mandate to sell and that it becomes their responsibility to make a buyer aware of any rights registered over a property. If any ambiguity arises this must be resolved between the seller and the buyer in writing (and or on the title deed)- before the buyer signs an offer to purchase. Why should it be buyer beware? It is disgusting how many dishonest if not completely fraudulent sales go through.
Can a purchaser purchasing a property with a Habitatio take the rent for the duration of the Habitatio off the purchase price?
Yes, the value of the habitatio is the Net Present Value (NPV) of the stream of rentals payable discounted at a suitable discount rate. This value is then deducted from the market price of the house without the habitatio.
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