Written for Property Poser

This week the Property Poser panel deals with a difficult mother-daughter dispute, which lies at the heart of a rather complex usufruct scenario.

It appears that the mother owns a property in a small town but she is not based near her children. One of her daughters offered to build a cottage for her mother on her property so that she could be closer to them.

For reasons not explained, but presumably as a form of payment, the mother transferred ownership of her own property to the daughter in exchange for a usufruct in her favour.

Unfortunately, the daughter never proceeded to build the cottage for the mother, as they had agreed upon.

Another daughter, who approached our experts with this query, then arranged for their mother to rather stay in a rented flat near her.

The reader and another sibling then approached the offending sister in an effort to persuade her to transfer ownership of the house back to their mother but she has refused.

Their mother has now apparently decided that she would rather want to bequeath the property to all her children in equal shares in the event of her death.

This would not be possible in the current circumstances, says Schalk van der Merwe from Rawson Properties in Somerset West, Cape Town.

“The person entitled to the usufruct over a property does have some rights but it is certainly a limited right of ownership.”

Van der Merwe says a usufruct holder is entitled to the fruits of the property, in other words, the right to live there or the right to the rental, should it be rented out.

“Therefore, the reader’s mother certainly still has the right to live in her property, even though she doesn’t own it completely.”

The transaction through which she granted ownership to her daughter could be questioned, says Van der Merwe.

“In this case, it appears that the transaction was done on the understanding that she would be receiving a cottage to live in as quid pro quo.”

Since that has not materialised, she has unintentionally donated the ownership of the bare dominium to her daughter, says Van der Merwe.

“Bare dominium refers to the limited real rights to a property that remain once you exclude the usufructuary’s rights.”

According to Grant Hill of Miller Bosman Le Roux Attorneys in Somerset West, the daughter in question has thus been unjustifiably enriched to the detriment of her mother.

“The mother could therefore claim that she has not received the performance that was due in terms of the transaction between herself and her daughter, leaving the daughter in breach of contract.”

Since the mother has already transferred the ownership to her daughter, Hill says she would most likely have to turn to the courts to claim restitution, should her daughter not comply with a reasonable request for the transaction to be reversed.

“This is not an easy matter, especially considering the complex nature of family.”

Another option for the mother would be to insist that the cottage be built for her, says Hill.

“In other words, she could insist on performance in terms of the contract.”

She would however have to find recourse via the legal system and bring an action or application to provide the appropriate relief, says Hill.

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