TRUMPED! A home owner can be evicted as an unlawful occupier

BY GOLDBERG & DE VILLIERS - OCTOBER 25, 2016

Did you know that even as the owner of a house, you could still be evicted from it as an "unlawful occupier"?

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 ("habitation").  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 "habitation"  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:

  1. You could -  perhaps as an estate planning exercise -  bequeath your house to one of your heirs, subject to a lifelong usufruct in favour of your spouse so that although he/she won't actually own the house after your death, he/she can still live in it for life
  2. Or you could sell your house to someone else but retain for yourself the right to remain in residence for life.

From bitter family feud to eviction application

The facts in the SCA case were these:

  • A mother sold her house to her son, subject to a lifelong right to live in it via a right of habitation. This was registered against the title deeds -  an essential step in making a servitude like this valid and enforceable against all-comers
  • The son subsequently married in community of property, so thereafter the house belonged jointly to him and his new wife
  • The mother, son and daughter-in-law lived together in the house for many years
  •  The son eventually moved out after divorcing, and relations in the house deteriorated to the extent that the mother temporarily fled the house and obtained a family violence interdict against the (now ex) daughter-in-law 
  • The ex daughter-in--law denied everything and said the mother was welcome to return at any time to live with her in the house. Naturally enough the mother declined this offer, and applied instead for an eviction order.

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.

For more information, visit www.goldbergdevilliers.co.za