A personal servitude is when a particular person (known as the holder) is given the right to use and enjoy another’s property. It is always in favour of a particular person.

Personal servitudes are enforceable against the owner but cannot be transferred by the holder. It is extinguished when the period expires for which the servitude has been granted, or when the holder dies. There are three types of personal servitudes: usufruct, usus and habitation.

Usufruct and rights

A usufruct is a right to have the use and enjoyment of another’s property and to take its fruits from it without impairing the substance. An example is where a husband bequeaths a residential property to his children in his will, but stipulates that his wife should enjoy usufruct until she dies. This way the husband ensures that his wife has the use and enjoyment of the property.

Usus is more restricted

A usus is similar to a usufruct but the holder’s rights are more restricted. The holder may possess and use movable property and if the property is immovable he or she and their family may occupy it. The holder may take the fruits for daily needs. The holder’s right to use must be without detriment to the substance of the property.

Habitatio meaning

Habitatio is when the holder, together with his or her family, has the right to dwell in the house of another without detriment to the substance. The habitatio holder may grant a lease or sublease of the property, where a holder of a usus servitude may not. A lifelong right to live in a house owned by another defines the right to habitation. This right is registered in the Deeds Office and once that has been done it is enforceable against everyone, including the owner of the immovable property.

Recent case law on servitudes

Habitatio was confirmed in the Supreme Court of Appeal case of Hendriks v Hendriks and Others (case no. 20519/2014, 25 November 2015), in which the court held that the owner’s rights in regards with a house must yield to the inhabitant’s right of habitation.

Facts of the case

The inhabitant was a 72-year-old mother who registered a right of habitation in her favour in the title deed and then sold her home to her son. The mother lived in the house together with her son and his wife. The mother and her daughter–in-law had a falling out which led to the mother temporarily moving out. Her son and daughter-in-law were married in community of property and were both registered as co-owners of the property. Soon after the mother moved out, her son and daughter-in-law divorced and the son moved out.

The mother tried to evict her daughter-in-law by applying to the Magistrate’s Court. However, the Magistrate’s Court held that the right of habitation could not enjoy preference above the right of ownership. It was taken on appeal to the High Court which dismissed the appeal and endorsed the view of the Magistrate’s Court.

The mother then approached the Supreme Court of Appeal and was successful.

Habitation can trump property ownership

The Supreme Court of Appeal held that the right of habitation was recognised as a limited real right and could trump the right of ownership of the property. As a result, the daughter-in-law, who was the owner, could not occupy the property without the consent of the mother, who was the holder of the right of habitation. The court also held that the mother could apply for the eviction of the registered owner.

In conclusion, review title deeds

Ultimately, the holder of the right of habitation can be regarded as the person who is “in charge” of the property. Further, the court found that at the time of the eviction application, the mother was the person in charge of the property and her legal authority which came from her right of habitation.

Any person who intends to conclude agreements or transactions regarding immovable property should first review the title deed to establish whether there are any rights of habitation or other limited real rights registered against it. If any such right exists it should be taken into account.

Contact our experienced Property Law and Litigation attorneys for any legal assistance regarding servitudes and rights of habitation.

For legal advice regarding Conveyancing and Property Law

Nicholas Hayes           nicholas@abgross.co.za

Marita Swanepoel      marita@abgross.co.za

David Kagan                dgkagan@abgross.co.za

For Litigation and Dispute Resolution expertise

Basilio de Sousa         basil@abgross.co.za

Juan Smuts                  juan@abgross.co.za

Jeremy Simon              jeremy@abgross.co.za

Henno Bothma           henno@abgross.co.za

Wesley Scheepers      wesley@abgross.co.za



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