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n Stellenbosch Law Review = Stellenbosch Regstydskrif - Bewoningsreg (habitatio) - aard van die regsobjek en die effek dáárvan op die registrasie van die reg
The object of habitatio and the consequences for the registration of it
The object of the right to habitatio (right of free residence) is the land which is subject to the limited real right of habitatio. Therefore, it must be registered against the title deeds of the land and describe with notarial precision which part of the land or dwelling is subject to the habitatio.
Notwithstanding the fact that the right of habitatio entitles the holder of the personal servitude to the use of a particular part of the servient property and consequently restrains owners of the servient properties from exercising their entitlements to the fullest extent, the exclusive use by the holder of the personal servitude is limited to that which is necessary to serve the holder's residential needs. The holder is not entitled to lease the rooms he or she does not need for his or her own account.
The law need not create a new legal object consisting of the rooms on the first floor of a house for the purpose of burdening the rooms in question with a habitatio in a grandmother's favour. The expense of requiring a surveyor's diagram to create a separate new legal object against which a right of habitatio could be registered is simply too high and unnecessary. This is the position when a farm or other property is subdivided or a sectional title scheme is established. In such cases the money expended on the registration of subdivisions can later be recovered when the newly created legal objects are sold.
It is submitted that the current practice of registrars of deeds to decline the registration of a right of habitatio unless a surveyor's diagram indicating the part of the land subject to the habitatio is included, is counter-productive and will cause the expiry of this very useful and much needed limited real right that was part of our common law since Roman times.
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