1,000+ retirement schemes on notice after shock widower-eviction defeat

Source: Pexels.

According to Johlene Wasserman, director at Van Deventer Dowlath & Marx Incorporated, the judgment highlights how life-right operators must carefully consider spousal rights and ensure fairness in managing retirement-housing disputes and agreements.

She explains: “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 throw him out, arguing that because his details had never been formally inserted into her agreement, he had no right to stay.”

Life-rights in South Africa

In a life-rights scheme, residents purchase the right to live in a unit for the remainder of their lives, and because they don’t own the property, the law builds in additional protections to prevent unfair eviction.

According to retirement-industry data, South Africa has over 1,000 retirement developments, with a significant portion operating under the life-rights framework. With the country’s over-60 population projected to reach 7 million by 2030, according to Stats SA, Wasserman says the legal protections around retirement housing are becoming increasingly important.

The High Court’s key principles

In its judgment on NG Kerk Brackenhurst Aftreebehuising NWO v H.J.B. and Another (2024/026737), the High Court confirmed three critical principles:

• A spouse’s right to occupy doesn’t depend on administrative updates to a life‑rights contract.
• Long‑term occupation with the scheme’s knowledge can create enforceable rights.
• Eviction of elderly or vulnerable residents must always be tested against constitutional and 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 (Prevention of Illegal Eviction from and Unlawful Occupation of Land) Act protects vulnerable residents.”

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

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The executor didn’t want the widower to be evicted: Wasserman says 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.

"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.’’

The executor didn’t want eviction – only the life-rights scheme did! The executor confirmed that he had no intention of removing Mr HJB, she says, meaning that the eviction drive came solely from the scheme’s management.

“This highlights a profound irony: the lawful custodian and executor of the deceased’s estate actively opposed the eviction, leaving the scheme's management as the sole party driving the litigation!”

Forgetting to update the paperwork isn’t 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.”

Wasserman warns operators that life-right agreements aren’t ordinary commercial contracts, and says the courts read them through the ‘protective lens’ of the Housing Act, not allowing operators to use technicalities that undermine the purpose of retirement housing.

The power of the PIE Act

“The PIE Act is a powerful protective shield. Even a strong contractual argument can collapse at the just‑and‑equitable stage,” she says.

Wasserman has a four-point checklist for trustees, directors and managing agents:

• Keeping resident records updated as life circumstances change
• Not relying on technical omissions to justify eviction
• Assessing every potential eviction through a PIE lens from the outset
• Obtaining legal advice early – especially where a spouse or long-term partner is involved