LIFE RIGHTS IN TERMS OF ACT 65 OF 1988

Life rights that are acquired in retirement villages are normally subject to the Housing Schemes for Retirement Persons Act, No 65 of 1988. The question requiring an answer is whether another party, such as a spouse, is entitled to enjoy the property (life right) after the death of the holder thereof.

It obviously depends on the form of ownership and marital status of the parties. Where parties are married in community of property and the scheme is based on sectional title, freehold or share block, the spouse can stay on because he or she is legally the joint owner.

Where spouses are married in community of property and the scheme is based on life rights, it will depend on the terms of the agreement entered into with the developer. In most instances this sort of agreement usually states that the spouse may stay on. It is advisable that both spouses name each other as heir of each other’s ownership or shareholding in the retirement scheme.

Where the spouses are married out of community of property and bought the property or shares jointly (whether sectional title, freehold or share block) then the surviving spouse will only own half of the property/shares. It is however, necessary to ensure by way of a will that the half share of the deceased devolves to the survivor.

Where the spouses are married out of community of property and the scheme is based on life rights, it will again depend on the terms of the agreement entered into with the developer. In this case the ownership or shareholding will be in the name of the deceased only and the surviving spouse will have to acquire the ownership/shares from the deceased’s estate in order to remain living in the property. It should ideally be bequeathed to the survivor in the deceased’s will.

Please do not hesitate to contact us should you require assistance

Allen West
Tonkin Clacey Pretoria
Tel: 012 346 1278