Kidson and Another v Jimspeed Enterprises CC and Others (38574/08) [2009] ZAGPPHC 30 (20 April 2009)

Kidson and Another v Jimspeed Enterprises CC and Others (38574/08) [2009] ZAGPPHC 30 (20 April 2009)

The right of habitatio, as a personal servitude registered against the title deed, does not lapse upon destruction of the dwelling unless the land itself becomes incapable of supporting a structure. The applicants did not abandon their right, as evidenced by their continued assertion of the right and legal actions. The current owner is bound by the registered servitude regardless of knowledge at purchase. The applicants are entitled to rebuild or use alternative means of abode on the land, and to exercise all ancillary rights associated with habitatio, subject to statutory and regulatory compliance. The owner of the servient property is not required to take positive action to restore the...

Citation
[2009] ZAGPPHC 30
Parties
Applicant: W F Kidson; Applicant: J C Kidson; Respondent: Jimspeed Enterprises CC; Respondent: JS Sinclair N.O.; Respondent: Registrar of Deeds Pretoria
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
20 April 2009
Case Number
38574/08
Procedural Posture
Civil Application / Judgment
Outcome
Application granted. The right of habitatio remains valid and enforceable; applicants entitled to rebuild or use alternative accommodation and exercise ancillary rights.
Judges
Van Rooyen
Legal Topics
Personal Servitude, Habitatio, Abandonment of Rights, Real Rights, Registration of Servitude
Land and Property Personal Servitude Habitatio Abandonment of Rights Real Rights Registration of Servitude

Case Brief

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Parties

W F Kidson

Applicant

J C Kidson

Applicant

Jimspeed Enterprises CC

Respondent

JS Sinclair N.O.

Respondent

Registrar of Deeds Pretoria

Respondent

Procedural Posture

Civil Application / Judgment

Legal Issues

  1. 1 Does the right of habitatio lapse upon destruction of the dwelling on the land.
  2. 2 Are the applicants entitled to rebuild or otherwise exercise their right of habitatio after the destruction of the original structures.
  3. 3 Did the applicants abandon their right of habitatio by leaving the property and seeking damages in the magistrate's court.

Ratio Decidendi

The right of habitatio, as a personal servitude registered against the title deed, does not lapse upon destruction of the dwelling unless the land itself becomes incapable of supporting a structure. The applicants did not abandon their right, as evidenced by their continued assertion of the right and legal actions. The current owner is bound by the registered servitude regardless of knowledge at purchase. The applicants are entitled to rebuild or use alternative means of abode on the land, and to exercise all ancillary rights associated with habitatio, subject to statutory and regulatory compliance. The owner of the servient property is not required to take positive action to restore the...

Court Disposition

Application granted. The right of habitatio remains valid and enforceable; applicants entitled to rebuild or use alternative accommodation and exercise ancillary rights.

Orders

  • The Certificate of United Title (Annexure B) issued by the Registrar of Deeds on 10 August 1999, specifically paragraph B on pages 3-4, is declared valid and in force.
  • First and Second Applicants are entitled, until the death of the First Applicant, to exercise their right of habitatio on the land by rebuilding structures or using alternative means of abode, movable or immovable.