Beware: Ownership does not necessarily make you the “King of the Castle”

Article_Beware-Ownership-Eviction-wideOn the 26 November 2015, the Supreme Court of Appeal (SCA) delivered judgment in the case of A Hendricks v M Hendricks & others 2015 ZASCA 165 [PDF] holding that an owner who occupies property without the consent of the holder of a right of habitation in respect of that property is an unlawful occupier under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (the PIE Act) and may be evicted from the property under certain circumstances. The matter came before the SCA after two appeals from the Somerset West Magistrate’s Court and the Western Cape High Court.

The salient facts of the case are as follows:-

Ms Hendricks (the Appellant) owned certain residential property. After reaching the age of retirement, she sold the property to her son (the Second Respondent). At the time of the sale of the property, the Appellant wished to continue living on the property for the remainder of her life. The Appellant and her son accordingly agreed that a lifelong right of habitation would be registered against the property in the Appellant’s favour. The son accordingly purchased the bare dominium rights in the property.

After taking ownership of the property and with his mother’s consent, the Second Respondent moved onto the property. Shortly thereafter the Second Respondent married, and his wife (the First Respondent) also moved onto the property.

When the relationship between the Appellant and the First Respondent became intolerably strained, the Appellant temporarily vacated the property. Around the same time, the First and Second Respondents became estranged. In 2010 the Respondents were divorced and the Second Respondent also vacated the property. By virtue of the Respondents’ marriage in community of property, the First Respondent acquired ownership of a half share of the property and continued to live in the property with her children and other members of her family.

In 2012, three years after vacating the property, the Appellant delivered a letter of demand to the First Respondent, asserting her right to occupy the house and demanding that the First Respondent (and all those residing in the property under her) vacate the property by a certain date failing which the Appellant would institute eviction proceedings in terms of the PIE Act.

When the First Respondent failed to vacate the property the Appellant launched eviction proceedings.

The Appellant’s PIE application was brought in terms of section 4 of the PIE Act. Section 4 thereof provides that either the owner or the person in charge of land may institute proceedings to evict unlawful occupants from the land.

In a case where the unlawful occupants have occupied the land for more than six months, section 4(7) of the PIE Act states that the court may order an eviction if it would be just and equitable to do so in the circumstances having regard inter alia to the rights and needs of the elderly, children, disabled persons and households headed by women.

The Magistrates Court proceedings & appeal to the High Court

Two key definitions in the Act were pivotal to the Magistrate’s Court’s decision to dismiss the Appellant’s eviction application.  In terms of section 1 of the PIE Act, an “unlawful occupier” is defined as “any person who occupies land without the express or tacit consent of the owner or person in charge [of the land]….

In terms of the same section “a person in charge of [the land]” 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 Magistrate’s Court held that the First Respondent was not an unlawful occupier as defined within the PIE Act. The basis of the decision hinged on the fact that the First Respondent was the lawful owner of the property.

Secondly, the Court held that the Appellant’s right of habitation did not make her the person in charge of the property. Accordingly, she did not have legal standing in terms of section 4 of the PIE Act to institute eviction proceedings against the First Respondent.

The decision was upheld on Appeal before the Western Cape High Court.

The Supreme Court of Appeal’s ruling

In the subsequent appeal before the SCA, the SCA held that the Magistrate’s Court had erred in reasoning that a right of ownership in respect of property is always synonymous with a right to occupy the property.

The Court stated that ownership is the most comprehensive right that a person may have in respect of property, in that it ordinarily entails an inherent right to use, enjoy and in the case of a house, occupy the property. However, when the owner through agreement or otherwise confers on another the right to exercise one or more of these rights, such as the right to occupy a house, then the owner can no longer lawfully exercise that particular right.

As noted by the court, a right of habitation is an exclusive limited real right which affords the holder the right to dwell in the house of another, without detriment to the substance of the property. The right is enforceable against the world at large including against the owner of the property. For the duration of the right of habitation, the holder steps into the owner’s shoes in all respects relating to the occupation of the property and the holder of the right of habitation has the authority to determine who may or may not occupy the house.

According to the SCA, by virtue of the Appellant’s right of habitation, the Appellant was the person who had legal authority to give permission to a person to enter or reside upon the property in question and therefore, for purposes of an eviction under the PIE Act, the Appellant was the person in charge of the property.  Since the First Respondent was residing on the property without the Appellant’s consent she was an unlawful occupier as defined within the PIE Act and could be evicted in terms of an order of Court.

Given that the First Respondent and her relatives had occupied the property for over six months, the SCA ordered that the case be remitted to the Magistrate’s Court for the Court to determine whether it was just and equitable to order an eviction having regard, amongst other things to the rights and needs of the children residing with the First Respondent on the property.

The Hendricks decision is a sobering reminder to property owners of the need to always exercise and enjoy their ownership rights subject to any limitations they have voluntarily assumed in respect thereof and that are recognised by law.

As indicated by the Hendricks case, ownership does not always give you an unfettered discretion to do as you wish with your property.

Mame Amoateng

Mame Amoateng

Mame Amoateng, a candidate attorney, joined Ashersons in 2014. Mame holds a Master of Laws Degree in International Litigation and Arbitration. Mame’s interests lie in cross border disputes, commercial arbitration and drafting commercial contracts.

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