The court granted an elderly widower the right to occupy a retirement unit despite eviction attempts.
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An elderly widower, who was at risk of being kicked out of a retirement unit because only his now deceased wife's name appeared on the lifetime-rights agreement, has been deemed entitled to remain in the home by the Gauteng High Court, Johannesburg ruled.
The issue came before court after the NG Kerk Brackenhurst Aftreebehuising, a non-profit company, which owned the retirement scheme, wanted to evict the 78-year-old man (who is only identified by his initials in the judgment) as his name was not on the contract. The Housing Development Schemes for Retired Persons Act makes provision that the purchaser of a unit, including the person’s spouse, have lifetime occupation rights.
The application arises following the death of his wife, who concluded a contractual life right entitling her to occupy the unit for the duration of her life and, where applicable, for the lifetime of her spouse.
When the agreement was concluded, the deceased was divorced and no spouse was recorded in the agreement. In March 2019, she married the respondent and they lived together until her death. The church subsequently requested him to vacate the unit on the basis that he had no right of continued occupation. When he refused to do so, the current eviction proceedings were initiated.
The church argued that the widower is in unlawful occupation of the unit because his particulars do not appear in the agreement as the spouse of the purchaser. On its interpretation, the agreement permits continued occupation after the purchaser’s death only by a spouse whose particulars appear in the agreement, with the result that the right of occupation terminated upon the deceased’s death.
The widower disputed the claim of unlawful occupation and argued that he resided in the unit openly as the deceased’s spouse for several years prior to her death with the knowledge and acceptance of the church.
In these circumstances, he said, the applicant cannot rely on the absence of a formal amendment to the agreement recording his particulars in order to deny him continued occupation. The deceased also executed a will shortly before her death in which she bequeathed her interest in the unit to her husband and thereafter to her son upon the husband’s death.
Judge Leonie Windell, however, said a housing interest in such a scheme is a personal right and is not capable of transfer or inheritance. The provisions of the will therefore do not determine the legal entitlement to occupy the unit but are relevant insofar as it reflects the deceased’s intention regarding her husband’s continued occupation.
Retirement housing schemes are ordinarily structured on the premise that occupation includes the purchaser’s spouse. Nothing in the language of the agreement, the statutory framework, or the manner in which the agreement was implemented suggests that the parties contemplated that the right of occupation would terminate automatically upon the purchaser’s remarriage merely because the later spouse’s particulars were not formally inserted, she said.
The judge also pointed to the personal circumstances of the widower, who is in poor health. She acknowledged the argument by the church that his continued occupation prevents the resale of the housing interest and consequently delays the winding-up of the deceased estate. But she said this application was not launched by the executor of the deceased estate.
The judge concluded that it would be unjust to evict him, as it was known prior to his wife’s death that he lived in the unit as her husband.
zelda.venter@inl.co.za