Die invloed van beperkte saaklike regte op die gebruik en oordraagbaarheid van onroerende boedelbates

Abstract

In the South African law there are different rights regarding to objects. In this dissertation two specific kinds of limited real rights will be examined, namely usufruct and housing development schemes for retired persons. It seems that there are uncertainty in the South African law in regards to these two tipes of limited real rights, mainly the use and transferability of these rights. The aim of this dissertation is thus to analyse these two types of limited real rights from an estate planners point of view. Usufruct is still commonly used as an instrument in estate planning. The question still remains whether usufructus is useful. In the case of retirement villages limited real rights fulfill an extremely important function. Different types of housing schemes can be applicable to retirement villages. According to article 4A of the Housing Development Schemes for Retired Persons Act interests in a retirement village always reside on a limited real right only if certain prescribed statutory formalities are met. This influence the use and transferability of an interest. It is necessary to analyse this influence from an estate planners point of view in order to determine the extend of the legal protection of the person concerned. Usufruct as estate planning instrument does not hold optimal advantages. Although estate duty can initially be saved capital gains tax can have negative impact in the future. An estate planner should advice his client to rather make use of a trust. The examination of housing development schemes in regards to retirement villages showed that the three schemes mostly used in South African law are underwritten by different rules and contain different rights. An estate planner must therefore inform his client about the consequences of the scheme in which he/she invests as well as the transferability of the scheme.