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PROPERTY LAW NOTES VERIFIED
& GRADED A+
INTRODUCTION
Property: in the broad sense: includes everything that forms part of someone’s estate = includes immovable property, movable property etc.
Property: in the narrow sense: amounts to a thing – law of things: which is a branch of private law which consists of a number of legal rules that determine the nature, content, establishment, protection, transfer and termination of various real relationships between a legal subject and a thing.
DEFINITIONS
Legal subject: any person (natural/juristic) capable of acting as a subject in legal relationships and getting rights and duties.
Legal object: every object with which a legal subject has a legally recognized relationship – anything with regard to which a person can get and hold a right.
Property: is everything, which can form part of someone’s estate, including corporeal and incorporeal rights.
Thing: is a corporeal object outside the human body and an independent entity capable of being subjected to the legal control by a legal subject for who it has use and value.
Right: is a legally recognized and valid claim by a subject to a certain object.
Property right: is a legally recognized claim or interest in property
Remedy: is a legal procedure provided by a legal system to protect a right against infringement or to control the effects of unlawful action.
REAL RELATIONSHIP
This is a legal relationship between a legal subject and a thing. A legal subject can get rights from a real relationship only if it’s lawful
- if it complies with legal rules. A legal subject won’t get any rights from unlawful relationships.
The most NB real relationships: a) Ownership = lawful real relationship and a real right b) Possession: physical control of a thing with the intention of an
owner = unlawful and is a real relationship but not a real right
e) Useful and valuable to humans: the thing must satisfy the needs of a legal subject. It need not necessarily have economic value but can also have sentimental value.
**CLASSIFICATION OF THINGS NEGOTIABLE AND NON-NEGOTIABLE THINGS Negotiable things:
- Res alicuius:** things owned by a person or things in a insolvent or deceased estate 2) Res nullis: things capable of being owned but which at a particular stage aren’t owned by anyone 3) Res derelictae: things no longer in the physical control of the owners and in respect of which the owner no longer has the intention to be owner 4) Res deperditae: things lost and no longer in the physical control of the owner but in respect of which the owner hasn’t lost the intention to be owner.
Non-negotiable things a) Natural resources falling outside legal commerce which are available for all people (air): res communes ominium b) Things owned by the state and used for the publics benefit (sea): res publicae c) Things that aren’t freely negotiable for another reason (corpse): res extra commercium
SINGULAR AND COMPOSITE THINGS
MOVABLE AND IMMOVABLE THINGS
Immovables: land and everything permanently attached to it
Movables: all things, which aren’t immovable’s
Differences between movables and immovables
- Transfer of ownership of movables is effected by delivery, and of immovables by registration
- The right to alienate or encumber the estate of a minor - Permission of the High Court is required for the alienation or encumbrance of a minor's immovable assets worth more than R100 000-
- In the execution and in insolvency, the debtor's movable assets are sold before the immovables, to secure payment of the judgment debt
- In criminal law theft can be committed only in respect of movables, while arson can only be committed in relation to immovables.
- Real security is effected by means of a pledge in the case of movables and by means of a mortgage in the case of immovable things.
FUNGIBLE AND NON-FUNGIBLE THINGS
Fungible things: belong to a certain class and can be replaced by similar things – they don’t have individual characteristics which make them irreplaceable = light bulb
Non-fungible things: have an individual characteristic or value that makes them irreplaceable – original painting
CONSUMABLE AND NON-CONSUMABLE THINGS
Consumable things: are depleted in value or consumed by normal use - wine
Non-consumable things: are maintained, even if normal wear and tear occur through use – car
DIVISIBLE ANMD INDIVISIBLE THINGS Divisible things: can be divided into smaller components, while keeping its nature and function and without the value of it depleting – piece of land
Indivisible thing: can’t be divided without changing the value, nature or function of a thing – painting
Real rights over immovable property MUST be registered in order to enforce such rights over others
To see if a right amounts to a REAL right or a PERSONAL right the courts created the Subtraction from dominium test: Ex Parte Geldenhuis: Facts: husband and wife left their land to their children in a will. The land would go to them as co-owners when the eldest child reached majority. The land would then be divided into portions by drawing lots. The child who got the land with the house on had to pay the others compensation.
2 conditions:
- The time and manner of sub-division and usually co-owners are free to decide when to sub-divide – if the obligation is on the land = subtraction from dominium and it can be registered. Therefore subsequent owners are also bound.
- The child with the house has to compensate the others – if the burden is on a specific person in his personal capacity = creditors right and it can’t be registered – subsequent owners wont be bound.
The 1 st^ obligation diminishes a co-owners rights of sub-division and was intended to do so = it therefore affects all subsequent owners and is a burden on the land = REAL RIGHT AND MUST BE REGISTERED
The 2 nd^ obligation places a burden on one child only – it was intended to restore the balance – it’s a burden on a specific person in his personal capacity and doesn’t subtract from ownership = CREDITORS RIGHT AND THEREFORE CANT BE REGISTERED. In this case the court decided to register them together for convenience.
One has to look not so much to the right, but to the obligation. If that obligation is a burden upon the land, a subtraction from the dominium [ownership], the right is real and registrable, if it is not such an obligation, but merely an obligation binding on some person the right is a personal right and it cannot as a rule be registered.
Cape Explosive Works v Denel: In terms of the Deeds Registry Act all real rights in respect of immovable property must be registered: in order to determine if a right was a real right the court looked at:
- The intention of the person who creates the right to bind all successors in title and
- The nature of the condition must be such that the registration result in a subtraction of the owners dominium
DEFINITION IN COMMON LAW: ownership is the most complete real right that a legal subject can have regarding a thing. It’s the real right that gives the owner the most complete and absolute entitlements to a thing. Ownership can however be limited by the rights of others and the law
OWNERSHIP
DEFINITION AND LIMITATIONS OF OWNERSHIP
Ownership can be defined with reference to its inviolability, its inherent nature and its entitlements.
1) Inviolability: someone can’t lose his ownership without his consent – someone can’t pass a better title than he himself has. Nemo plus iuris rule: no one can transfer more rights than he himself has.
2) Inherent nature: in Gien v Gien: the court defined ownership with reference to its inherent nature, as the most complete real right that someone can have to a thing = a person can do with his property as he pleases. BUT: this freedom is restricted by law and the rights of others.
LIMITATIONS ON OWNERSHIP
Ownership can be limited in 2 ways: by the LAW or by Rights of others
LIMITATIONS IMPOSED BY LAW:
STATUTE:
Limitations on movable things: Firearms – Firearms Control Act Motor vehicles – National Road Traffic Act
Limitations on immovable things: Land – the Subdivision of Agricultural Land Act, the Spatial Planning and Land Use Management Act
Gien v Gien: the respondent erected an apparatus, which made explosive noises at regular intervals, to scare away baboons from his vegetable garden. The machine functioned day and night and could be heard on the neighboring farm of the applicant – disturbing their sleep and making their animals restless. It was possible for the respondent to muffle the sound and turn it off at night without impairing its efficiency, BUT the respondent said that he was acting on his own property, in the interests of protecting his property, which couldn’t constitute a nuisance to the applicant. The applicant approached the court for an interdict, stopping the respondent from using the machine in such a way that it would cause a nuisance. Requirements for an interdict: a) Applicant must prove a clear right b) Respondent must intrude or threaten to intrude on that right c) No other remedy must provide satisfactory protection.
Court said: that ownership is the most complete real right a person can have to a thing, but ownership is restricted by the rights of others. Court looks at:
- Were the acts of the respondent fair and reasonable
- Did the respondent act in bad faith
- Was the respondents use of the property normal
- Were the respondent’s actions harmful to the applicant, because he is an abnormally sensitive person?
The court balances the competing rights of the neighboring owners.
Nuisance in the wider sense This consists in the infringement of a neighbor’s exercise of his entitlements in general or action by the neighboring owner that causes damage. Remedy: interdict or claim for damages.
Malherbe v Ceres Municipality: leaves from oak trees next to the street blocked the gutters of the appellants building and he alleged that the roots had damaged the walls of the building. His application for an interdict was denied, because the respondent hadn’t acted unreasonably and because it was normal practice to plant trees next to the street.
Regal v African Superslate: Facts: the previous owner of the property left slate waste on his property and some of it was washed on to the neighbor’s property. The damage caused by the slate was minimal whereas the cost of maintaining the slate waste was very high. It would involve building a wall on the owner’s property.
The neighbor claimed an interdict restraining the owner from continuing the nuisance.
Held: the order wasn’t granted – the criterion is reasonableness: the new owner should only be liable to avert damage for future floods if it’s reasonable for him to do so. Building the wall was unreasonable especially as the neighbor suffered little damage.
LATERAL AND SURFACT SUPPORT
Every owner of land is entitled to support from his neighbors land – an owner can’t make excavations on his land, which results in his neighbors land subsiding. If this happens the owner who made the excavations is liable for the damage caused to his neighbors land, even in the absence of fault.
Pappalardo v Hau:
The resident of a township in Gauteng was ordered by the High court to allow his neighbour to insert a drainage port in the wall, which was on the common boundary between them. He appealed the courts decision.
The purpose of the drainage ports was to allow rainwater, which had gathered on the neighbour’s side to flow down the natural slope of the 2 properties onto the appellants land.
The High Court held: that the appellant as the owner of the lower lying property was obliged to accept the water flowing from the higher lying neighbour based on the natural flow of the water.
On appeal the SCA: the applicant’s obligation in this situation is limited to the NATURAL FLOW of water between the 2 neighbouring properties. Since there was no proof of a natural flow, the right to drain the water through the drainage ports should NOT be allowed.
The appeal was successful
ENCROACHMENTS Buildings: The owner of the land on which the encroachment has taken place can use one of the following remedies:
- Removal of the encroachment: he can demand that the encroaching part be removed, but he can’t remove it himself.
- The owner can claim ejectment from his land, against payment of compensation for the enhancement of his property.
- The owner can claim that the encroacher should take transfer of the land and pay compensation.
Its enforceable against the owner and subsequent owners (successors in title)
CREDITORS RIGHTS OF 3RD^ PARTIES AGAINST THE OWNER
You can limit the exercise of any entitlement by the owner of a thing, by means of a contract: This contractual limitation is only enforceable against the owner in his personal capacity. It can’t be enforced against subsequent owners.
RESTRICTIVE CONDITIONS: Definition: restrictive conditions in the narrow sense a. Are limited real rights b. Registered at the time of township establishment by the original owner or developer against all or certain of the stands in a specific township area c. Which limit the free use and enjoyment by the owner of such land d. To the benefit of the other owners in their capacity as owners of stands (real restrictive condition) or e. To the benefit of a person in his personal capacity (personal restrictive condition)
Real restrictive conditions:
- The benefit arising from the restrictive condition vests in all or certain of the owners of stands in certain township area in their capacity as owners of stands
- A real restrictive condition is classified as a stipulation in favor of a 3rd^ party (stipulatio alteri) in the sense that the original township owner negotiates with every owner of a stand to benefit from the other stand owners
- Its established at the time of township establishment in that its registered against the title deed of stands in the township
Personal restrictive conditions: a. if the condition is registered against all or certain stands at the time of the township establishment to the benefit of a certain person; it’s a personal restrictive condition a. The construction of a stipulation in favor of a 3rd^ party isn’t applied to explain the legal nature, since every stand is not at the same time encumbered and benefited b. Personal restrictive conditions are also established during township establishment
ORIGINAL ACQUISITION OF OWNERSHIP
Introduction Original acquisition of ownership: isn’t dependent on the lawful ownership of the predecessor – it takes place through a legal process. There is no transfer of ownership. If there is no previous owner, acquisition of ownership takes place through appropriation of a thing that isn’t owned or has been abandoned by its owner.
Derivative acquisition of ownership: occurs with the cooperation with a predecessor in title. The rights, which the transferee gets, are derived from the former owner = the predecessor in title should have himself been the owner and entitled to transfer ownership (nemo plus iuris rule). The right is transferred to the new owner with all the advantages and disadvantages attached to the right.
ORIGINAL ACQUISITION OF OWNERSHIP INCLUDES: a) appropriation b) Accession c) Manufacture d) Mixing e) Acquisition of fruits f) Expropriation g) Prescription h) Treasure trove
APPROPRIATION
Requirements: a) Physical control: the acquirer must get physical control, with the intention to become owner. The nature of the physical control depends on the nature of the thing and the circumstances of the case. Control need not be lawful. Reck v Mills: Facts: there was a shipwreck and divers marked a condenser that they wanted from the ship, with a rope and a buoy attached to it. A 2nd^ set of divers can and took the condenser away. The 1st^ set of divers took the matter to court. Issue: was whether the 1st^ set of divers had sufficient control to constitute the 1st^ requirement of occupation.
Appropriation: is where a legal subject takes physical control of a thing that can be owned such as a res nullis, with the intention to become owner: Unilateral exercising of control Over a corporeal thing that can be owned But which isn’t owned by anyone (res nullis or res derelictae) With the intention of becoming owner
Therefore, if one person wounds a wild animal but another person catches it or discovers the carcass, the latter obtains ownership.
Q and R, who are S's grandparents, are lovers of game and they keep two impalas, a few kudus and a giraffe in a camp of approximately 250 to 300 hectares in extent. The camp is enclosed by a fence 1.68 m high. Q and R purchased the animals at an auction from a well-known game farmer who marks all his animals with the initials JR. Late one evening the game ranger leaves the gate open and the animals escape. S and his friends go hunting on S's farm the following evening. They shoot four of the kudus. S's grandparents, Q and R, are claiming the value of the animals from S and his friends because they argue that the game was their property.
S and his friends took physical control of the kudus. The kudus were within the legal sphere and they (S and his friends) intended to become owners of the kudus. The question, however, is whether the four kudus were res nullius? Res nullius are things that belong to no one. All creatures that are wild by nature (animals, birds, fish and insects) either in their natural state (before someone has taken control of them) or when they have reverted to their former wild state (after having been tamed (controlled) by a person) are regarded as res nullius. An exception occurs in the case of wild animals, which have been tamed (domesticated). In this set of facts, however, one must bear in mind that the kudus belonged to Q and R, who acquired them by means of a derivative form of acquisition of ownership, namely delivery. They derive their ownership from their predecessor in title, the game farmer, who sold and delivered them to Q and R at the auction. They are identifiable and therefore they belong to Q and R, who can claim them with the rei vindicatio if they still exist or else claim their value.
Accession: takes place when 2 corporeal things are combined by either human activity or natural process, in such a way that one of the things loses its physical or economic independence and becomes a component of the other thing. The thing that remains independent = principle thing. The thing merged in such a way that it loses its independence = accessory thing. The owner of the principle thing becomes the owner of the accessory thing.
ACCESSION
Passing of ownership through accession only takes place if: a) The composite thing isn’t easily divisible b) The principle and accessory thing can be distinguished c) The accession doesn’t amount to the making of a new thing (manufacture)
Sowing and planting can be defined as an original method of acquiring ownership in terms of which growing things accede to land and become the property of the owner of the land. Accession takes place as soon as the plants take root in the soil.
- Growing things accede to the land - everything planted on land became part of the land, plants, in taking root, derive water and essential nourishment from the soil
- Become the property of the owner of the land - certain circumstances, for example, on the grounds of unjust enrichment, the planter may claim compensation from the owner.
ACCESSION OF A MOVABLE TO AN IMMOVABLE
Planting and sowing: Is an original method of getting ownership in terms of which growing things accede to land and become the property of the owner of the land – accession takes place as soon as the plant takes root.
Elements:
- Growing things accede to land: this is a process where growing movables attach to land.
- They become the property of the landowner: if the plant is removed it remains the property of the landowner, because it
This normally takes place by human activity, where a movable becomes permanently attached to an immovable. The owner of the immovable (principle part) becomes the owner of the movable (accessory part)
Objective: look at objective factors like the manner and degree of attachment etc.
Cases: MacDonald Ltd v Radin NO: Facts: S leased a farm and decided to build a dairy and stables on the farm, which belonged to X and Y. S buys all the equipment to build the dairy from K, who reserved ownership of the equipment until the full purchase price was paid. A team working for K installed the dairy. 2 years after S started the dairy and before K had been paid in full, S became insolvent. His trustee argues that all the structures and equipment are movables and fall into the insolvent estate.
If the first two criteria are not decisive, the third one is the determining factor. In the MacDonald case the third criterion was described as the intention of the ‘‘person annexing it’’ and also as ‘‘the intention with which it was annexed’’. The judge stated that one can only look at the intention of the owner of the movable. In this case the owner of the movables was also the annexor, although he acted under the supervision of the non-owner, who bought the movables on credit. Therefore, X and Y cannot claim ownership of the equipment since it was K’s intention to retain ownership until the last instalment had been paid and it was with this intention in mind that he attached the equipment.
Since the attachments remained movable, the cooperative remained the owner. Since the attachments remained movable, the cooperative remained the owner. However, since S was insolvent, the Insolvency Act automatically converted the cooperative’s ownership into a tacit hypothec.
Standard Vacuum Refining Co of SA v Durban City Council: Facts: the appellant owns and operates an oil refinery on land within municipality territory of the respondent, who then took the value of the oil tanks into consideration when assessing the value of the land. Appellant objected to the valuation, arguing that the oil tanks weren’t buildings and didn’t constitute immovable property.
Held: it was decided that the nature and physical features of the tanks in question, the method of their construction and attachment and the difficulties involved in removing them = all indicate an intention to attach them to the land permanently. The court accepted that the intention is the intention of the annexor at the time of attachment.
On appeal the Supreme Court held that the tanks didn’t constitute immovable property – there would be no damage to the land to remove them.
Theatre Investments (Pty) Ltd and another v Butcher Brothers Limited: Facts: the appellant occupied and used land leased from the respondent for 50 years, with a right of renewal. In terms of the lease the lessee undertook to continue with the erection of a theatre on the land – it was built and fitted with seats, lighting, carpets and an air-con. The lease stated that on expiry of the lease the lessor would get ownership of all buildings and improvements on the property without being liable to the lessee for compensation.
On expiration of the lease the parties couldn’t reach an agreement of the renewal of the lease and it was therefore terminated. A dispute arose when the lessee claimed certain equipment = saying that it remained a movable and he asserted his rights as owner to remove them.
The respondent applied for an interdict, stopping the lessee from removing the items and the interdict was granted. The lessee appealed.
The court looks at the fact that the chairs were specifically designed to use in the theatre and the difficulty of removing them.
Held: the court decided that the intention was to attach permanently and they therefore became immovables = acceded to the land and the lessee lost his rights.
Konstanz Property (Pty) Ltd: Facts: the appellant through his farm manager concluded a contract with P (a close corporation) in terms of which P was to install an irrigation system on the appellant’s farm. P bought the components of the system from the respondent, a wholesaler. In terms of the purchase agreement, the respondent reserved ownership of each item pending payment of the full purchase price, P installed the system on the farm and was paid by the appellant, but failed to pay the respondent.
The respondent got default judgment against P, in terms of which the sheriff was ordered ion the event of non-payment to attach the equipment.
