n Stellenbosch Law Review = Stellenbosch Regstydskrif - Verryking van die eienaar by nie-uitoefening van habitatio en versorgingsverpligtinge jeens eie ouer as bewoningsreghebbende
|Article Title||Verryking van die eienaar by nie-uitoefening van habitatio en versorgingsverpligtinge jeens eie ouer as bewoningsreghebbende|
|© Publisher:||Juta Law Publishing|
|Journal||Stellenbosch Law Review = Stellenbosch Regstydskrif|
|Publication Date||Jan 2010|
|Pages||26 - 44|
The default position is that a limited real right of habitatio lapses with the death of the holder of the right. This personal servitude is not transferable and the real right cannot be transferred to a third party (or the owner). This position is not affected by the fact that the holder of the limited real right is compelled by his frailty (due to old age) to vacate the dwelling and move to a frail care centre.
In this contribution the possible enrichment of the owner is considered where he enjoys the benefit of the dwelling being vacated earlier by the holder of the habitatio, especially if he lets it to a third party for his own account or merely utilises the space. Should the owner happen to be a child of the frail senior citizen who is compelled to foot the bill of the exuberant costs involved in his stay in the frail care centre, it is submitted that the owner might be liable for the maintenance of the parent. This liability can be based in the first place on a child's duty to support his parents. It may also in the second place be based on the unjustified enrichment enjoyed by the owner of the property that is burdened with the limited real right.
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