Durban court orders eviction of businessman from Hindu organisation Phoenix property

Ruling

Published 59 minutes ago

A 78-year-old widower in Alberton narrowly avoided eviction from his retirement village after the High Court ruled that surviving spouses cannot be evicted due to paperwork errors.

The court set aside the life-rights committee’s decision to evict him.

It is a judgment that shines the spotlight on how life‑right operators need to treat spouses, says Johlene Wasserman, Director and Head of Community Schemes and Compliance at law firm Van Deventer Dowlath & Marx Incorporated.

She explained that when Mrs AB bought a life-right at the NG Kerk Brackenhurst retirement village in 2010, she was divorced and listed no spouse. Nine years later, she married Mr HJB, who moved in and lived there without anyone objecting.

When she died, however, the scheme tried to evict   him, arguing that because his details had never been formally inserted into her agreement, he had no right to stay.

Wasserman further explained that in a   life-rights scheme , residents purchase the right to live in a unit for the remainder of their lives, and because they do not own the property, the law builds in additional protections to prevent unfair eviction.

In the judgment relating to the Church in Brackenhurst, the High Court confirmed that a spouse’s right to occupy doesn’t depend on administrative updates to a life‑rights contract.

It also confirmed that long‑term occupation with the scheme’s knowledge could create enforceable rights. The eviction of elderly or vulnerable residents must always be tested against constitutional principles and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) based fairness, even where a contract appears clear.

Life-rights schemes cannot weaponise admin gaps, Wasserman states.

“The court held that the omission did not erase his right to remain in his home, and it also clarified how life-rights contracts have to be read, how schemes have to treat spouses, and how the PIE Act protects vulnerable residents.”

The court also cited Section 7 of the Housing Development Schemes for Retired Persons Act, which assumes that a purchaser’s spouse may occupy the property.

Wasserman said the case turned on contract interpretation, not PIE.

“The PIE Act was the second line of defence here, not the first. Mr HJB won on the contract itself. The court found he held a spousal right to occupy and so was never an unlawful occupier, which is why the eviction failed."

She explained that PIE then confirmed the outcome.

“Even on a just-and-equitable enquiry, removing an elderly man in poor health from the only home he knows could never be justified. Eviction is never automatic, and the contract has to favour the operator before PIE is even reached," she says.

Forgetting to update the paperwork is not a legal strategy, she stresses.

“If a scheme knows that a resident has married, divorced, or remarried, it has to update its records, because silence or acquiescence can create rights that cannot later be denied."

Warning operators that life‑right agreements aren’t ordinary commercial contracts, Wasserman said the courts read them through the “protective lens” of the Housing Act and won’t allow operators to use technicalities that undermine the purpose of retirement housing.

Wasserman’s advice to retirement development’s managing agents and trustees includes keeping resident records updated as life circumstances change and not relying   on technical omissions to justify eviction.

THE POST

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