Bewoningsreg (habitatio) - Verval dit weens versteuring (vernietiging) van die bouwerk?

Habitatio has since time immemorial been recognized as one of the personal servitudes, in addition to usufruct and use. All personal servitudes have been classified, since Roman times, with praedial servitudes, as limited real rights. In spite of the personal servitude's connection to a particular person (it cannot be transferred or inherited) it is for all other purposes a real right and, as such, legally recognized property which is protected as an asset by private law remedies. All real rights have a res as object. The object of the right to habitatio (right of free residence) is the land which is subject to the limited real right of habitatio. That is why it is registered against the title deed of the land with cadastral precision as to which part of the land is subject to the habitatio. When this approach is adopted, it would, with respect, be inconsistent to accept that when eg the house burns down or is otherwise demolished, the right falls away. The true test should be whether it has become impossible to rebuild because, as a result of the mutation to the land itself the land had become unable to support any structure which can be utilised as a dwelling. This would be supported by the Digest text underlying this thinking: "Rei mutatione interire usum fructum placet" (D 7 4 5 2). Generally it would be inequitable to benefit the owner of the servient tenement by cancellation of the limited real right as a burden to his ownership due to the mere destruction of the building utilised as dwelling. The ius in re aliena limits his or her ownership until the death of the person entitled to the habitatio. Why must it fall away by way of mere coincidence or destruction of the structure on the land if it does not entail a mutation of the land (rei mutatione) as object of the right itself? The owner of the burdened property can always seek to reach an agreement with the holder of the limited real right to abandon his right against a reasonable mutually agreeable quid pro quo, but he need not necessarily enjoy the benefit of an unburdened ownership just because an uncontrolled bush fire (or a malicious predecessor in title) destroyed the structure that served as dwelling for the holder of the habitatio. It is, however, foreign to habitatio as a limited real right to entitle the holder of the servitude to claim any positive action from the owner of the servient property. The core of the owner's duty is, indeed, inaction: servitus faciendo consistere non potest/nequit. The above line of thinking is supported by judgements on decisions by the German Courts, when confronted with the question whether the devastation which the Second World War had brought with it removed the servitudes (Wohnrechte) which existed before the war. Some lawyers argued that, as would be the case with a lessee who cannot compel the landlord to re-errect the bombed building because the contract of lease was cancelled with the destruction of the leased object, the destruction also puts an end to the right to habitatio. Westermann, however, convincingly argues that the object of the ius in rem was never the house as an integral part of the land, but that the burden rested on the land and that is why the habitatio is registered against the land. "Die einseitige Abstellung auf die 'Belastung des Gebäudes' ⋯ übersieht, daß grundsätzlich das Grundstück belastet ist. 'Eine Haftung an bestimmten Räumen' ⋯ ist nicht gegeben" - the fixation with the tainted formulation as if the right to free residence is dependent on certain rooms or areas - misses the important point that it is the land that is burdened as object of the real right, not the area within a certain room or building (Westermann 613). The land as object was not destroyed. The homestead is not an independent res; it is fully dependent on the land on which it was erected. Wolf motivates it well: "Die mögliche inhaltliche Beschränkung auf einen Teil eines Gebäudes ändert nichts daran, daß das Wohnungsrecht am ganzen Grundstück besteht" (553 - emphasis added). The destruction caused by the bombardment did not destroy the right when the bricks fell. It is submitted that when the dwelling or farmstead was destroyed the limited real right of habitatio did not come to an end provided the holders of the right did not abandon their right. The holders of the dwelling right are entitled to all the rights which habitatio grants them which would include the right to reach the place where the house was situated on the land. If the road has been destroyed, it may be rebuilt as a via necessitatis - or, if that is no longer possible, an alternative route must be made available to them by the owner. This is the gist of the judgment by Van Rooyen AJ in Kidson v Jimspeed Enterprises CC where the court recently (April 2009) decided in favour of the holders of the dwelling right notwithstanding the fact that their dwelling had been maliciously destroyed by a previous owner. Although the current land owner could in no way be held vicariously liable for the damage caused by the predecessor in title, the court ordered that the current owner may in no way hamper the holders of the dwelling right in their effort to re-establish some dwelling for themselves on the land still burdened with their personal servitude. Habitatio includes the right to have all the benefits which existed when the right was vested. The holders of the right are, accordingly, entitled to restore the status quo. If they are unable to restore the house in exactly the same form, they would be entitled to build an alternative structure or even place a prefabricated structure or a wooden house on the place where the previous structure was. It need not even be an immovable structure. They have a right to habitatio on the said piece of land by whatever means. If they build an immovable structure, the structure becomes the property of the owner - obviously subject to the right of habitatio. In conclusion, it is suggested that in line with the constitutional duty to develop the common law, the holder of a right of free dwelling should be entitled to safeguard his interest inter alia by obtaining for his own account sufficient insurance cover to indemnify him in the event of the occurrence of a risk that damages the structure of his dwelling. This would be the logical consequence of acknowledging that the holder of the habitatio retains a legal and insurable interest in the res aliena even after the (temporary) destruction of the dwelling and is entitled to repair the damage to restore the structure. Such insurance cover may result in the application of the insurance payment for the repair or even reconstruction of the structure in order for it to be fit for the intended purpose of a dwelling. It is generally acknowleged that a right of habitatio can be reserved (and registered against the title deed) by the seller notwithstanding the fact that the anticipated dwelling had not been completed yet. For the same reason the right does not lapses merely because of the destruction of the dwelling by fire or demolisioner's hammer. The right exists irrespective of the structural strength or standing of the dwelling because the object of the limited real right is the land, not the structure attached to the land (Hausner Dienstbarkeiten bei Zerstörung von Bausubstanz (2003) 88).