She wants to know from our panel of experts whether maintenance work will also be for the estate’s account and if the use of services such as the telephone and DSTV are included. The trustees of the estate have disconnected the DSTV.

Lucille Geldenhuys

Lucille Geldenhuys from Lucille Geldenhuys Attorneys in Stellenbosch says when an owner of immovable property passes away, he or she can bequeath the ownership to his or her heir subject to a right of use and/or habitation by another person for a specific period.

“Our common law recognises three legal concepts in this regard.

“The first is referred to as usufruct, which is a legal right to use and derive profit from a property belonging to someone else. Profits may include rental income as well as, for instance, that derived from farming activities.”

Geldenhuys says the user may not sell, change or destroy the property and must eventually return it to the owner who, in the case of a deceased estate, will be the person who inherited it.

“The second concept is known as usus (right of use), which entitles the user to occupy a house with his or her spouse, family and guests and he or she may let out a part of it. The user may not alienate the property or cede the right to use it to another person.”

The third, habitatio (living rights), gives a person the right to live in a property, says Geldenhuys. “The holder of a habitatio may cede his or her right to use the property to another and he or she may also rent the property out.

“It is clear that the concepts are very similar and therefore it is important that the testator get proper legal advice when drawing up the will.”

Schalk van der Merwe

Schalk van der Merwe from Rawson Properties Helderberg says it is also important that the testator indicate who will be responsible for the maintenance of the property and payment of, among other things, the rates and taxes, levies and insurance premiums.

In terms of our common law, the person who is liable for these expenses is not necessarily the person whom the testator intended, according to Van der Merwe.

“In the case of a usufruct, the user will be liable for the maintenance costs, excluding costs relating to the normal deterioration of the property, as well as expenses such as rates and taxes.”

Van der Merwe says the owner will be liable for the insurance of the property and any extraordinary expenses, for example large scale repairs. “There rests a lesser obligation on the holder of a habitatio or usus for the running expenses relating to the property.”

The exact obligations by the inhabitant or user with regard to the running costs of the property will depend on the circumstances of the case and on the provisions of the will, says Van der Merwe. “Additional services like a telephone and DSTV will not normally be included unless the will provides for it.

“In the reader’s case, it will be necessary to examine the will to determine what personal right was bequeathed to her before the extent of her rights and obligations can be determined.”

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