By: Natasha Archary
Advocate Nompumelelo Seme, Property Law and Land Reform scholar breaks down what the law says about family homes and ownership on Kaya Biz.
Many families are faced with disputes over the inheritance of immovable property after a death of a loved one.
Often family members assume that the family home will simply pass from generation to generation, thus ensuring that the intestate succession continues, however, the law only recognizes one owner of the family home, and that is the deceased.
Seme defines a family home as a property that under common law is recognised for having history. It is also a property that extends to communal ownership, where the person who is the owner of the property is merely a custodian.
According to Seme, the custodian doesn’t have the right to emanate or sell the property, nor to rent it out, instead the property exists solely for the benefit of the family.
Passing from generation to generation, thus ensuring that the family home remains an “inheritance” for the family, which includes ancestors and future children who are yet to be born.
This is where the issue of inheritance regarding a family home gets tricky, because common law and property law doesn’t recognise this.
“A family home is NOT protected under the law, because the Registrar of Deed, only recognises one owner. There isn’t a recognition for custodianship.
The common law means you have a title deed for the property which is registered and anybody has access to see who owns the property.
There is no inclusion for a custodian of the property.”
Advocate and Property Law scholar Nompumelelo Seme on what the law says about the inheritance of a family home
Seme says this stems from the days of apartheid, when black people were not allowed to own property. Instead people were given houses on leases, until the lates 80’s when they were given the option to convert these leases into agreements of ownership.
However, the agreement only recognised one owner, and upon death, the property falls back to the State, unless there’s a Will in place.
Wills should stipulate the entitlements of family members and who is to inherit the family home and what is to become of the property.
Whether the entitled family member lives in the family home or sells the property and splits the shares amongst other members of the family.
LISTEN: To the conversation on Kaya Biz
Also read: “My aunt has been mismanaging the money I send back home” :The Blindspot
