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How do I go about granting my parents the right to live in a portion of my property for the remainder of their lives?

Sep 30, 2023

I’ve just bought a property and need to grant my parents the right to occupy the garden cottage for the remainder of their lives – what are the options available to me and the considerations I should bear in mind? These questions are often put to us by clients, and this article explores the two common methods: through a voluntary agreement or by registering the right at a Deeds Registry. Both options provide legal protection to the grantee for the remainder of their life, ensuring their right to occupy the property.

  1. Granting through Voluntary Agreement:

One option for granting a right to inhabit a portion of an immovable property is through a voluntary agreement between the property owner (grantor) and the intended occupant (grantee). This agreement outlines the terms and conditions under which the grantee can occupy the property for the remainder of their life.

Key considerations for a voluntary agreement include:

a. Clarity of Terms: The agreement should clearly define the grantee’s rights, responsibilities, and any limitations imposed on their use of the property. This helps avoid ambiguity and potential disputes in the future.

b. Legal Formalities: While a written agreement is not required for creating the right to inhabit, it is strongly advisable to document the agreement in writing to ensure clarity and legal enforceability.

  1. Registration at the Deeds Registry:

Alternatively, the right to inhabit a portion of an immovable property can be registered at the Deeds Registry. This method provides public notice and legal protection to the grantee.

There are 2 registrable rights to use and enjoy the immovable property of another person in South Africa, namely usufruct and habitatio.

Usufruct is a legal concept that grants a person (known as the usufructuary) the right to use and enjoy the benefits of another person’s property. The property remains owned by the legal owner (known as the bare dominium), but the usufructuary has the right to live in or use the property, collect its fruits or income, and even rent it out, subject to any limitations or conditions set out in the usufruct agreement. The usufructuary typically has a duty to maintain the property and leave it in good condition when the usufruct ends.

On the other hand, habitatio is a legal concept that grants a person the right to reside in another person’s property as their primary residence. Unlike usufruct, habitatio does not involve the right to collect income or use the property for other purposes. It is more focused on providing a dwelling for the person granted habitatio rights, typically for their lifetime.

Key considerations for registration of either of the above rights include:

a. Conditions for Registration: The Deeds Registry Act sets out specific conditions for the registration of a right to inhabit. Your Conveyancing Attorney or Notary Public will guide you in this regard. Remember that if the value of the right exceeds certain thresholds, transfer duty may be payable.

b. Conveyancing Attorney: It will be necessary to engage the services of a qualified conveyancing attorney to assist with the registration process, as they possess the expertise to navigate the intricacies of the registration process.

c. Legal Validity: Once registered, the right to inhabit becomes a legally recognized interest in the property and provides the grantee with a greater level of protection against any claims or disputes that may arise.

Both these options provide legal protection to the grantee and ensure an enforceable right to occupy the property. When considering either option, it is advisable to seek legal advice and we invite you to engage with one of our attorneys in this regard.

You can reach us on info@fha.law.za / 021 790 6006 / www.fha.law.za

Frank Holland

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