This week, the Property Poser panel contemplates the legal rights concerned with granting the use, or habitatio, of a property.
A reader granted her pensioner father the right to stay in her house, a property separate from her residence, but now wishes to sell it in order to use the proceeds elsewhere.
Her father is not willing to leave or seek alternative accommodation. The reader would like to know what her rights are in this regard.
The right of habitatio is an exclusive personal right, says Grant Berndt from Abdo and Abdo Attorneys in East London.
Grant Berndt - Abdo & Abdo Attorneys
“It lives and dies with our reader’s father and cannot be transferred. It can be abandoned by him but is otherwise inalienable.”
This type of personal servitude confers on its holder the right to dwell in another person’s house, together with his or her family, without detriment to the substance of the property, says Berndt.
“It also carries with it the right to grant a lease or sublease to others.”
Berndt says a second, lesser type of personal right is referred to as usus. “This entitles the user to occupy a house with his or her family and guests and also let out a part of the house.”
The user may not alienate the property or cede the right of use to another person, says Berndt.
“It is always necessary in a situation like this to examine the facts of the matter properly to determine what type of personal servitude one is dealing with, as this will determine what the rights of the holder are.”
The reader may have permitted her father to stay in the house for an unspecified period without actually intending it to be indefinite, or without intending to formally grant him a real right of use or habitation, says Berndt.
“One way of ascertaining whether the reader’s intention was to formally grant her father a right of usus or habitatio, is to determine whether the real right was registered against the title deed of the property, says Brian Kinnear, principal of Fresh Lifestyle Properties in East London.
Brian Kinnear - Fresh Lifestyle Properties
Once a right is granted, Kinnear says it cannot be revoked, except if any stipulated conditions have not been met or by mutual agreement.
“If it is absolutely necessary for the house in question to be sold, our reader would do well to approach her father and negotiate his leaving the house voluntarily.”
Kinnear suggests relocating him to a residence more suitable for him to see out his remaining years, thereby avoiding family quarrels and potential legal disputes.
“If agreement cannot be reached, the reader should cast her mind back to the exact terms mentioned at the time that the right was granted.”
This will allow her to properly assess the content and validity thereof, says Kinnear.
“Another aspect for the reader to explore with her attorney is whether she was, in fact, entitled to grant the right in question; it may never have been hers to grant.”
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