A reader who bought a farm for less than its market value wants to know what her options are to remove the seller, who says he has a right to remain because of a verbal usufruct.
She questions whether there is even such an agreement as a verbal usufruct.
After the transfer of registration, the seller refused to vacate the farm because of the usufruct over the farm he claimed to have in his favour.
The reader adds that he never mentioned that at the time of the sale.
The status quo has been in place for five years, but she now wants him to leave the property.
See the reader’s question here.
A usufruct is a type of servitude where the owner passes to another person the right of use and enjoyment of that property.
The person entitled to the usufruct is the lawful possessor of that property.
He also has the right to use or sell the fruits from the property.
Because this usufruct was verbal, it would appear that the seller ostensibly provided himself with the usufruct prior to or at the time of the sale to the reader.
Seemingly, this was not communicated to the reader as a condition of sale.
Due to the fact that five years have passed since the time of purchase, it would seem that the position was not of much concern to the reader until recently.
It possibly suited her to have the seller on the property to look after it.
A usufruct is typically established by way of agreement between two parties – the owner of the property and the person receiving the right of its enjoyment.
As ownership already encompasses the right of use, it is doubtful whether the owner could verbally have conferred a restricted right to himself.
However, the Deeds Registries Act provides that a personal servitude may be reserved by condition in a deed of transfer of land.
This is the case if the reservation is in favour of the transferor or his spouse or their survivors if they are married in community of property.
It is possible that, considering the provisions of the act and the fact that the property was seemingly sold for less than market value, the intention was for the seller to remain on the property for an agreed period of time.
If such an arrangement existed, the terms and conditions were a little flimsy and not reduced to writing as required in the act.
In the circumstances, it could be argued that it is highly unlikely that a valid usufruct exists in favour of the seller of the farm.
In the event of it being shown that the seller should have provided the purchaser with vacant occupation of the farm, as was more than likely stipulated in the agreement of sale, the reader should seek formal legal advice.
More particularly, she should ascertain the correct and lawful manner to go about evicting the seller from the farm.
The strange circumstances could have resulted from a misunderstanding between the parties.
This could be easily resolved with an open and frank discussion to reach a solution where the seller may voluntarily elect to vacate the property.
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