Hi there! my lecturer, sent me here to get some assistance on a moot question that I have been assigned with to submit tomorrow. 

The relevant facts for the section of the question that I'm answering are summarised as follows: 

A house is owned and inhabited by the Jones'. 10 years ago, the Jones' retired and moved out of this property. They offer A and B (who are adult siblings) to move into this property. "No sale took place, and the children were gifted the use of the house" (wording in the facts). The siblings subsequently divided the house into two to accomodate two families, and made other permanent fixtures and changes to the house. 

The Jones' pass away. The land is bequethed to their children, R and D. R and D ask A and B to move out since the previous owners are now deceased. A and B are willing to move on condition that they are reimbursed for the expenses they incurred in making permanent changes to the house. (The facts do not contain any details about whether the value of the property increased, when exactly the changes were made etc. This is as detailed as the facts get.)

R and D bring an eviction claim and a damages claim for the changes made against A and B.  A and B counterclaim using unjustified enrichment. 

I am representing R and D, the applicants. 

My plan was initially to argue that: 

a) The agreement between the Smiths and the siblings established a habitatio in favour of the siblings, allowing them to live in the house and not make any changes to it as this is the nature of personal servitudes. 

b)  By making changes to the property, they breached the habitatio. 

c) Since personal servitudes attatch to the person, the servitude was terminated upon the death of the Smiths. However, R and D are  entitled to a remedy for the breach because they are the new owners of the property and have a direct and substantial interest in the property. 

d) As such, they can claim damages for the breach of the servitude. Damages would be the sum total of the cost of returning the property to its original state. 

However, I'm unsure about whether its plausible for a few reasons.

First, does it make sense to argue that a servitude has been terminated, then rely on the same terminated servitude to claim a remedy? I know this is possible in contract, as a contract can be cancelled and have specific performace as a remedy in reliance of the cancelled contract. I'm just not sure if that works in property law. 

Second, is the reason I gave for why R and D can claim damages even though they were not parties to the initial agreement sound? I anticipate that opposition will bring up privity of contract here, and I'm hoping the arguement that R and D have substantial interest in the case will help. (Still looking for case law to back this one up though). 

And finally, does the arguement in general make sense? I'm just looking to have a plausible arguement that doesn't have a glaring legal shortfall that I've missed. There has been a lot of disagreement and confusion among the students about these facts (this is just part of the full set) which has made me unsure. 

Thank you for taking the time to read this. Also, this is a really great website! I want to tell everyone I know about it :)

Just remember that the Deeds Registries Act requires any usufruct or right of habitatio to be registered against the title deeds of the property in question, so as to create the real right. Absent any registration against the title deeds, the right of habitatio would technically be a personal right ... not a real right. A personal right, as you know, could be claimed by A & B against the Jones, but not after they have passed away. 

R & D could therefore argue that A & B don't have a real right to remain in the property, and that their personal right can't be enforced anymore, therefore they need to leave. 

R & D would have a claim against A & B to 'put the property back' into the state that it was when they occupied the property. i.e. undo the illegal renovations.  They wouldn't be relying on the breach of a servitude here. They would be arguing that the renovations made by A & B have diminished the value of the property, therefore they have a damages claim.