Section 1 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the PIE Act) defines an “unlawful occupier” as “a person who occupies land without the express or tacit consent of the owner or person in charge…” The question thus arises as to what the legal position is where one person is the owner of the property while another person can be described as a “person in charge” by virtue of a right of habitation.

This question was dealt with in the case of Hendricks v Hendricks and Others 2016 (1) SA 511 (SCA) wherein a mother had sold her property to her son and registered a right of habitation in the property’s title deed in her favor. The son subsequently married in community of property making his wife the co-owner of the property. After a falling out between the mother and the wife, the mother applied to court for an eviction order against the wife. Although the Magistrate’s Court and the High Court dismissed her application on the basis that the owners of a property could not be defined as unlawful occupiers, the Supreme Court of Appeal found that the mother’s right of habitation was actually stronger than the wife’s right of ownership.

The reasoning behind the court’s decision was that the right of habitation is a limited real right enforceable against the entire world (hence its registrability against a title deed). The person holding a right of habitation is the “person in charge” of the property and they alone could legally grant permission to a person (even the registered owner) to reside in the property. In reaching its decision the court also made reference to the case of October NO & Another v Hendricks & Another 2016 (2) SA 600 (WCC) wherein the court held that 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. In this case it followed that the owner of the property could be an unlawful occupier if he or she occupied the property without the consent of the holder of a usufruct.

Therefore, a person with a registered right of habitation need not fear eviction by the owner as it is actually the owner of the property that needs permission from the holder of the right of habitation to occupy the property.