Eben Nel | 01 June 2023
Eben Nel is the chairperson of the Fiduciary Institute of Southern Africa (FISA) and a fiduciary adviser at PSG Trust, Gqeberha
Testators drafting a will often wish to leave an asset to one person but want someone else to use it.
For example, they may wish to say in their will: “I leave the house to my two children in equal parts, but grant my wife Susan the right to live there for the rest of her natural life. My neighbour John may use the workshop at the back of the house and all the tools to continue with our joint interest, the manufacturing of guitars.”
This type of right granted to someone is called a personal servitude and creates a limited right over the asset. It enables Susan and John, respectively, to use the property specified despite the fact that it belongs to someone else.
A personal servitude may be granted for life or for a specified time, or until a specific event occurs. If it was granted for a period of time, or until an event occurs, it will terminate if the holder of the right dies before such time or before the event has occurred. Read more: Why is it important to make a will?
The right to inhabit property
The limited right in favour of Susan is called a habitatio and entitles her, together with her immediate family, to live in the house for the rest of her life. She may let the house as residence to a third party, but she may not allow it to be used as a business, as her right was limited to living in the house.
Unless otherwise stated in the will, Susan will be responsible for consumables, like electricity and water.
The testators’ two children will be responsible for charges which owners typically pay, such as municipal rates and taxes.
It is advisable for the testator to specify who will be responsible for the maintenance and insurance of the property, or levies payable to a body corporate or homeowners association, as some of these costs may be related to the property and other to the use of the asset.
Right to all or part of the property
A habitatio can be granted over a specific part of a larger property, for instance a house on a farm or a flat situated on a property with more than one dwelling.
If that is the case, the right is limited to the particular house or unit and not to the rest of the property. It will include the right to freely access the house though, even if it means the holder of the habitatio has to drive or walk over the rest of the property.
The habitatio should be registered by the executor against the title deed, in which case it becomes a real right, enforceable against all third parties.
The right to use property
The right of John, called a usus, is more limited and strictly personal. He is only entitled to use the workshop for his own needs and may not rent it out, cede or transfer the right, or allow his friends to use it.
He may only use it for the purpose of building guitars, whether for profit or not. He has no responsibilities regarding the maintenance or any other costs of the property, except if specified in the will.
Susan may install a separate electricity meter and charge John for the use of electricity in the workshop.
Neither Susan, nor the children, may interfere with John’s right to use the workshop and the tools. They may not prevent him from having access to the workshop and to use it freely, and John may not use the workshop in a way that interferes with Susan’s right of habitatio or the owners’ rights to the property.
Be sure rights are legal
Both usus and habitatio are important tools available to testators to divide property after their deaths in an orderly manner.
It is imperative, however, that the correct terminology is used, and certain duties and rights are specified. For instance, a right of usus may also be in the form of a right to live on a property but is much more limited than a right of habitatio.
If the stipulation in the will is not correctly defined or the incorrect term is used, it may cause confusion after the testator’s death.
To prevent uncertainty and conflict, testators are encouraged to make use of knowledgeable fiduciary practitioners to advise them correctly and assist with the drafting of a will that does not only express their wishes correctly, but also addresses the many potential pitfalls.
