Judge says home is way more than just a place to store your paints and brushes

The case of Blue Dot Properties is one of a series in which the courts have tried to lay down what constitutes a ‘home’. As with other cases on this issue, the court heard from an owner who needed access to their property and, in opposition, occupiers who said they shouldn’t be made to move out of their home. One of the key questions that had to be resolved in the Blue Dot case was whether the widow of the deceased owner – she has since remarried and moved home – could block the sale of property which she lived in with her deceased husband on the grounds that she sometimes goes there to paint, and keeps her easel and paints in a studio there and therefore still has strong emotional ties to the property.

Read the judgment here
https://www.saflii.org/za/cases/ZAWCHC/2023/269.html

The problem of how to remove occupants from a property if they don’t want to go is not new. It’s a constant worry for people who rent out accommodation. And the problem was magnified in the case of Blue Dot, a company that owns a luxury seaside mansion in Bantry Bay. For about 35 years it was the home of a doctor. But he died in 2021 and the question for the court was what should happen to the mansion now that Blue Dot wants to sell it.

The doctor first occupied the place in 1986 and sometime later he was joined there by the woman whom he subsequently married – referred to as the widow. When he became ill in 2019, he and the widow invited her son by a previous marriage, along with his wife – the G couple – to move in with them.

They agreed, and rented out their own property while they lived in Bantry Bay, helping the older couple with care for the ill man and managing the large property. It includes two apartments, rented out to third parties.

Frustrated efforts to market the property

After her husband died, the widow re-married and now lives permanently on a luxury golf estate outside Stellenbosch. The G couple stayed on in the Bantry Bay property, however, managing the place and the rental apartments.

But, as the judge observed, ‘where’s there’s a will there are relatives’. Not long after the doctor died, his relatives started asking questions about the G couple’s continued occupation of the property. Sure, the doctor’s will nominates the widow as his sole heir. But it said nothing about the crucial question of her right to occupy the place.

Meanwhile, Blue Dot owed money to various creditors and so steps were taken to sell the property to settle all these debts. The G couple weren’t pleased by this – they didn’t want to move out – and it’s alleged that they frustrated efforts to market the property. That in turn led to court action so that the estate agents who were supposed to be marketing it, could get access.

Eviction order

But problems continued, and eventually Blue Dot asked the court to grant an eviction order against the G couple and the widow. That question – whether the court would order the G couple and the widow to vacate the property – was the central issue for the judge to decide.

Clearly, Blue Dot was the registered owner of the property and, in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land (PIE) law, that meant that Blue Dot had legal standing to seek the eviction of the G couple and the widow. But was the property the ‘home’ of the widow and the G couple?

As she tried to stave off eviction from the property, the widow put up an ingenious case on this question.

Strong emotional ties to the property

It was argued on her behalf that, although she has remarried and moved somewhere else with her new husband, she still has ‘strong emotional ties’ to the property that had been her home for so many years, while she was living there with her previous husband.

To underscore this point, the court heard that she enjoys painting, and when she used to live in the property with her now deceased husband, one room of the house was set aside for her to use as a studio. That room is still home to the material that she uses for her painting. And she ‘occasionally’ visits the property where she ‘still enjoys painting in her enclave in the house.’

According to her legal team, this means in effect that she still ‘occupies’ the property as she had done before. Her presence there wasn’t unlawful, and she was entitled to resist any attempt to evict her in terms of PIE.

‘Easel and palette’

Her lawyers said that the ‘presence’ of her ‘easel and palette’ in her studio was enough to make her a lawful occupier of the property. Quoting an apartheid-era case, they said that she had what amounted to a ‘habitual physical presence’ at her previous home and shouldn’t be evicted.

But in a more recent case, decided by the Supreme Court of Appeal (SCA), students who refused to leave their university residence because they claimed this was their ‘home’ failed to convince the appeal judges, and they said the students had to go. All of them had ‘homes’ that they had come from before staying in the residence, said the court, and held that the students could be lawfully evicted.

The SCA said that the accommodation provided at the residence wasn’t ‘a home’; rather, it was a place where they stayed, for a limited time, for a specific purpose. Thus, the protection of PIE didn’t apply and eviction would be lawful.

Similarly, in the Blue Dot case, the studio was ‘manifestly’ not the widow’s home, the court found. Nor would she be made homeless if she were to be ordered out of the property: she had a ‘regular abode’ elsewhere.

Given these circumstances, her ‘occasional use of the studio in the property does not constitute lawful occupation … under PIE and she is liable to be evicted’, the high court held.

Say her goodbyes

What about the G couple? It was argued on their behalf, that they were on the property ‘at the invitation’ of the widow. But once the court found that she was herself in ‘unlawful occupation’ of the property, she wasn’t entitled to invite anyone else to occupy it. The G couple would clearly have to go too.

How soon would they have to be out? The judge said that the widow should be given a chance to ‘say her goodbyes and retrieve her remaining possessions from the house’ and the couple also needed a ‘reasonable amount of time’ to vacate. Taking all the circumstances into account – including the lease of the G couple’s own property which expired at the end of March 2024 and the adverse impact a move would have on their teenage son who was busy with end-of-year exams – the court set Tuesday 2 April 2024 as the date for everyone’s eviction.

It’s an interesting case because it further finetunes what the courts will agree to accept as someone’s ‘home’ and the place from which they may not unlawfully be evicted. Merely using a spot as a painting studio and a place to store easels, paint and brushes just isn’t enough to qualify. Not even having ‘strong emotional ties’ to a place will necessarily be good enough. Blue Dot shows that far more than this will be needed to convince a court that a place really is your ‘home’.