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ANOTHER PROPERTY CASE WHERE DEED OF SALE WORDING WAS CRUCIAL
Habitatio rights not confirmed by the relevant clauses in the document.
Whenever a property is bequeathed or sold to a buyer on the understanding that he or she will allow a third party to occupy the premises in perpetuity (i.e. until that person moves on or dies) – a situation of conflict is possible at some future date, says Anton du Plessis, CEO of Vineyard Estates.
“A recent High Court case,” he said, “has shown just how tricky and difficult this can be, especially when the third party lives there free of charge and shares premises with the buyer.”
In the case referred to (JJ Jordan v ED Lowery), said du Plessis, the applicant, who had bought the property some years previously, alleged that the conduct of the respondent, who had been give a right to live free in the home with the applicant (but was expected to pay half the electricity costs) was such that it had become unpleasant to have her there. It was alleged that she had abused the applicant verbally and physically, had cut down trees and kept chickens (against the applicant’s wishes) and had not paid her share of the electricity bill – at one stage being ordered to do so by a court.
The applicant, therefore, applied to the court to have the respondent evicted. Earlier requests for her to leave having been ignored,
The respondent argued that she had a habitatio right to live in the house which could not be ignored or dismissed.
The court’s decision depended on whether the respondent did indeed have a habitatio right or whether she was just a ‘non-paying tenant’.
After perusing the Deed of Sale and a later addendum to it Justice N G Beshe said it was clear that no right of habitatio had ever been granted or agreed to and that the respondent’s status as a non-paying tenant had been established. She had, therefore, to observe all the rules normally associated with such a position.
The court ruled that the respondent had to leave the premises within 30 days and pay the costs of the court application.
Du Plessis commented, as has done on previous occasions, “Here again we have a case where the wording of the documents had to be interpreted literally and no alleged “understandings” or even possible verbal agreements could allow the court to place a different meaning on them.
“In my career as a property marketer,” he said, “time and again I have found it necessary to get the parties to an agreement to firm up the wording in their documents because as originally drafted it could have been open to more than interpretation. In this case the respondent’s view of her rights simply did not tie in with the written agreements so she did not have a case.”