MORTEN v MORTEN & ORS 2011 (1) ZLR 222 (H)

Flynote

Administration of estates “ family of deceased person “ right of spouse and children of deceased person to occupy immovable property occupied by deceased immediately before death “ limitations on such right “ rights of other persons in the property not affected

Headnote

The applicant was the widow of a man who owned a home in a retirement village. The village was run in terms of the constitution of the association which administered the village, as well as a notarial deed of servitude registered with the Deeds Office regulating the rights and affairs of the members of the village. Under the constitution of the association, the applicant was below the minimum age for residence in the village. Because of the applicant's age, and for other reasons, the association sought to remove the applicant from the village. At first the second and third respondents locked her out of her house, but she was restored with the help of the police. However, her application for an interdict to prevent the respondents from removing her failed on the grounds that she had not established a right to be in the house. The first respondent, the administrator of the applicant's late husband's estate, was issued letters of administration in respect of the estate and together with the second and third respondents ejected the applicant from the house. The applicant sought an urgent spoliation order. The application was resisted on various grounds, including the argument that the application was bad in law.

Held, that under s 10 of the Deceased Persons Family Maintenance Act [Chapter 6:03], the spouse of a deceased person has the right to occupy any immovable property which the deceased had the right to occupy and which the surviving spouse was ordinarily occupying immediately before the death of the deceased. However, under s 11, this right does not derogate from or prejudice in any way the rights of "any other person whomsoever which existed prior to the date of the death of the deceased person". Under the constitution of the association, the applicant had no right to occupy the house. This did not mean, though, that the respondents were entitled to eject her from the flat without following due process of the law. The provisions of the constitution and the notarial deed of servitude dealt with the applicant's right to habitatio and could not be elevated to the status of a court order authorising the eviction of the applicant. The respondents should seek to enforce their rights through the courts.