MyPE

Community Business Directory, Event Listings, News and Views from Gqeberha, Nelson Mandela Bay

Usufruct dispute and the Extension of Security of Tenure Act

By

This week the Property Poser expert clears 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 Sean Radue of Radue Attorneys in Port Elizabeth.

“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 Radue.

“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.”

Radue 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 Radue.

“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 Radue.

“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.”

Radue 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 Radue.

“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.'”

Radue 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 Radue.

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

The following two tabs change content below.

Fullstop

Full Stop Communications is a public relations consultancy in Port Elizabeth in the Eastern Cape of South Africa focusing on media relations and copywriting. We drive regional and national media campaigns in a number of fields, most notably in the property, legal and sports arenas. We also specialise in media monitoring, ghostwriting, editing, translation and advertising. See more articles by Full Stop.