Written for Property Poser

This week the Property Poser experts clear up a somewhat odd situation involving a family dispute about a usufruct over a farm.

The reader explains that he originally owned the farm, which he sold to his father some years ago on the understanding that he, the reader, would have a usufruct over the dwellings.

It seems that the arrangement was suitable to both parties as the reader continued to stay on the farm for a further 15 years. However, when his father passed away recently, certain issues surfaced.

It has since transpired that the deceased purchased the farm in the name of the reader’s niece. The niece now insists that the reader has no rights to stay on the farm.

Unfortunately, the reader says there is no agreement in place regulating or proving the existing arrangement.

The situation seems to have come about in a strange way, says Schalk van der Merwe from Rawson Properties in Somerset West, Cape Town.

“Property is transferred in a regulated and orderly fashion and is heavily document based.”

The identities of the parties, the seller and purchaser, are typically set out in the documentation, which is signed, says Van der Merwe.

“The conveyancer in control of the transfer explains the process to the signatory when the various documents are signed. Our reader should therefore have noticed that his niece was the recipient of the property.”

Van der Merwe says one would have expected the transaction to take place in the usual manner, with an agreement of sale being concluded between the seller and purchaser.

“It would include the condition of usufruct and the usufruct would be registered over the property around the time of transfer.”

From a contractual standpoint, the reader should examine the documentation giving rise to the transaction to ensure that the agreement of sale is valid, says Van der Merwe.

“If the agreement is defective or the material requirements for the sale were not met, the transaction may be void or voidable.”

Furthermore, the agreement may make provision for the registration of the intended usufruct and this could perhaps still be put into effect, says Grant Hill of Miller Bosman Le Roux Attorneys in Somerset West.

“The fact that our reader’s father has since passed away doesn’t help the matter, as his version will have to be inferred from the documentation alone.”

Hill says, aside from the contractual aspects, it may help the reader to consider the effect of the provisions of the Extension of Security of Tenure Act.

“This legislation regulates certain rights of residence and restricts eviction if prescribed conditions are met.”

On the face of it, the reader seems to meet the Act’s definition of an occupier, says Hill.

“The Act states that ‘occupier’ means ‘a person residing on land which belongs to another person, and who has or, on 4 February 1997 or thereafter, had consent or another right in law to do so.'”

Hill says the definition goes on to mention certain exclusions, which the reader would have to consider.

“If, in fact, our reader does qualify as an occupier, his residence on the property in question can only be terminated in accordance with the provisions of section eight under the Act.”

Unfortunately, without sufficient information, no definitive answer is possible, says Hill.

“But the contractual and legislative ideas should give our reader a good start.”

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Issued by:

Full Stop Communications

Coetzee Gouws
082 575 7991
041 368 4992

On behalf of:

Rawson Properties Helderberg & Miller Bosman Le Roux Attorneys