Relebogile

Moloisane
Property law
Pretoria north
31ha2107486
Question 1

1.1.
• As a part of the corporeal world, a thing is something external to a
person, but subject to the control of a legal subject for whose use and
benefit it is.
• The characteristics that are present for an item to be classified as a
thing are as follows;

• Corporeality - There must be tangible things that occupy space, such

as a house, a vehicle, a cellphone, or a cow. Some incorporeal objects,
however, have been recognized as things because they can be objects
of real rights, for example, intellectual property

• Impersonal nature(external to humans) - On the basis of religious and

ethical considerations underlying the legal system, modern law holds
that human bodies and parts cannot be legal objects. However,
advances in medical science have led to the commodification of the
human body

• Independence - As a separate and distinct entity, it must be recognized

as such (independent)

• Human control - Humans can only control things that are susceptible to
human control. Things like the moon and stars or mars cannot be
appropriated, and there is no legal relationship between the subject
and the object. However, some of these things may be controlled by
humans and thus susceptible to appropriation, for example, a container
with gas or sea sand

• Use and value to human beings -Courts will consider both monetary
and sentimental value, based on the specific context.

1.2 Classification of things

• It is possible to classify all things based on either of two major criteria,

namely:
 • (a)The relationship between them and humans
• As an inherent characteristic of the object
• Having to do with humans
• As a result of this criterion, things are not classified according to their
nature
• In various legal processes, only the function or purpose of the thing is
considered
• A transaction.
• We distinguish between negotiable and non-negotiable items here:
• (Negotiable and non-negotiable (res Commercio/extra commercium)
• Things can be classified according to their place in commerce, whether
they can be
• privately owned or not. In principle all things are negotiable except the
following non[1]negotiables (res extra commercium):
• (i) Common to all (Res commune’s omnium): things that do not fall
under private legal
• control, but that are available to be used by all legal subjects, for
example, free air and
• things that are really only susceptible of human control by communal
use
• (ii) Other res extra commercium: things that are not freely negotiable
for another
• reason, for example, body parts or a corpse. For religious and/or
ethical reasons a
• corpse and parts of a corpse are not regarded as things.
• (iii) Public (Res publicae): things that belong to the state but that are
used for the
• general benefit and use of the public, for example, national parks, the
seashore, etcetera.

Negotiable things (res in commercio) may be either someone's

property (res alicuius)
No one’s property (res nullius). In the latter instance, anyone can claim
ownership of
them by means of appropriation. We, therefore, distinguish between these co-
categories
of negotiable things:

res alicuius: things belonging to an owner and forming part of his/her estate.
Example:
house, car, mobile phone.
res nullius: things that are susceptible of ownership, but that belong to no one
at a
particular stage. For example, wild animals or fish or a thing that has been
thrown away
by its owner who no longer intends to be the owner (res derelictae).
 Res derelictae: Things no longer within the physical control of an owner and in
respect
of which the owner no longer has the intention to be the owner. Example:
abandoned
property. Can be acquired by Another person through appropriation.
Res deperditae: things lost and no longer within the physical control of the
owner but in
respect of which the owner has not lost the intention to be owner. Example:
Something
lost/misplaced. Cannot be acquired by another person by appropriation.
Non-negotiable things cannot form part of private commerce. Types of non-
negotiable
things:
Res communes omnium: Natural resources falling outside legal commerce
and which
are available to all people. Example: air and running water. (Note: these are
subject to
limitations imposed by legislation, e.g. National Water Act, Air Quality Act.)
Res publicae: Things owned by the state and used directly for the public's
benefit,
Examples: public roads, national parks, the sea, the beach. (Note: not all state
property
is non-negotiable. Some can be the subject of legal commerce. Example:
state land and
public buildings)

Question 2
2.1 Different theories have been developed to distinguish between real rights and
personal rights, but none of these theories have succeeded in separating real and
personal rights into watertight compartments. Briefly explain the subtraction
from the dominium (ownership) test. Refer to relevant case law in your answer

2.1.
• In Ex parte Geldenhuys 1926 OPD 155the court formulated the subtraction of
dominium(ownership) test to determine whether one is dealing with a real or a
personal right in a particular set of facts g
 • The court suggested that the focus should not be so much on the right, but
rather on the correlative obligation
• If an obligation Is a burden on the land then it constitutes a real right, but if the
obligation only burdens some persons the right is a personal right
• Subtraction from the dominium is not the only characteristic of a real right
• A right is only a real right if the person who creates it intends to bind not only
the current owner of the property concerned but all his successors in title.
• There are two requirements;

• The intention of the person who creates the real right must be to bind not only
the present owner of the land but also his successors in title

• And the nature of the right condition must be such that the registration of
results in ‘subtraction from dominium’ of the land against which it is registered

• If a right created between parties does not meet both of these requirements,
then it is
• merely a 'personal ‘right, which is only effective against the person to whom it
applies. A
• right is only a real right if the person who creates it intends to bind not only the
current
• owner of the property concerned, but all his/her successors in title.

2.2.
Ownership
• Real right over one’s own thing
• Most comprehensive real right to a thing
• Example: owner of a piece of land
Limited real rights
• Right to another person’s thing
• Limited, in principle
• Example: Usufruct (holder of limited real
• right over land of another)
Question 3

3.1. Limitations imposed in terms of neighbour law

• The purpose of neighbour law is the harmonisation of neighbours by weighing
their rights and obligation in the exercise of entitlement against each other in
order to balance conflicting interests
• Limitations such as the following are imposed on neighbour law

Nuisance

• Refers to an unreasonable infringement of a neighbour’s rights and can be

divided into narrow nuisance which can affect the quality of life of the claimant

• Nuisance in the narrow sense consists of an infringement on the neighbour’s

use and enjoyment of the land, which constitutes an infringement of a
personality right or an entitlement of use by means of noise, smells, gases
and so on,

• This infringement does not necessarily result in damages, but rather

personality infringement

• The remedies are a prohibitory interdict and a claim for delictual damages

• Nuisance in the wider sense consists of the infringement of the neighbours’

exercise of entitlements in general, or actions by the neighbouring owner
occupier that causes damages.

• Nuisance in the broad sense results in in the damage to property and the
remedies are a prohibitory interdict and a claim for delictual damages

Lateral and surface support

• Every owner of a piece of land is entitled to support from their neighbours’

land
 • An owner may not proceed in doing excavations which may result in their
neighbours’ land diminishing

• If such a matter occurs, the owner who made excavations is responsible for
any damages caused to the neighbours’ land

• Even in the absence of fault since this is a form of strict liability

• The obligation exists in respect of the support given by the land to a

neighbouring piece of land in its natural state

• It does not include support in respect of building or order additions which form
an additional burden to neighbouring land

• Once the natural state has been changed by building on it, this rule no longer
applies.
• Any damages such as buildings that are cracking due to soil collapsing on the
neighbours’ property after excavation would be a claim against the owner who
removed the support.

Encroachments

• Takes two forms; overhanging and building roots, branches, and leaves
• Buildings- a landowner may not exceed the vertical boundaries of his/her land
• When a landowner builds a structure on their land they must make sure that
they do not in any way encroach on the land of their neighbour, if they do
encroach the neighbour can
• Remove, compensate, transfer, terminate,
•
•
•
• The other form of encroachment branches, roots, and leaves- when planting
seeds and flowers landowner must make sure that they do not cross or violate
the neighbours’ property by overhanging branches, roots or fallen leaves
• If the encroachment occurs then the neighbour may request the removal of
branches if they are not removed in time the neighbour may request an order
to do it himself
• If plants are planted on the neighbours land they become property of the
neighbour, the neighbour can remove or keep them
3.2
Removal: owner may demand that the encroaching parts of the building be
removed. He/she may not remove them him/herself. Court must exercise its
discretion,
taking fairness and reasonableness into account.
Compensation: Can be awarded to an owner if he/she didn't exercise his/her right of
removal or if it would be unreasonable to demand removal.
Transfer and compensation: the defendant can be ordered to take transfer of the part
of the land on which the encroachment took place in addition to the payment of
compensation.
Termination and compensation: the landowner can terminate the defendant's
occupation of the encroaching building but must then compensate the defendant for
the
value of the improvements made on his/her land. Only applies in cases where the
encroachment constitutes an independent building
Branches, leaves and roots
If a landowner planted trees or flowers, he/she must ensure that the border between
his/her and his/her neighbours' properties is not violated by branches, roots or fallen
leaves.
If this type of encroachment occurs, the neighbour has the following remedies:
The landowner can request that the owner of the neighbouring land cut off or
remove the encroaching branches and leaves. If not done within a reasonable
time, the neighbour can request an order to do it him/herself. Landowner may not
keep the chopped off branches.
If the plants are planted by a landowner on his/her neighbour's land, they
become the property of the neighbour (only after taking root). Neighbour can
remove or keep them at will but he/she cannot insist that they will be removed by
his/her neighbour who planted them.
If the roots of trees planted on the neighbour's land encroach the land of a
landowner, he/she can remove the roots him/herself. There no authority but the
possibility exists that the landowner can get an order for the removal of the trees.
If the neighbour suffered any damage as a result of the roots of a tree, he/she
can claim damages. However, damage caused by blocked gutters from leaves
cannot be claimed since they could have been avoided by regular cleaning.
Note the different remedies available to the owner in the event of an
encroachment from a neighbouring property. Once again it is not necessary to
prove fault or other element of a delict, as liability is not based on delict.

Question 4

4.1. Original and derivative methods of acquiring ownership

Original methods of acquiring ownership are used when there is no cooperation from
a
predecessor in title, in other words, where there is no transfer of ownership. Original
acquisition of ownership is not dependent on the lawful ownership of a legal
predecessor nor is it dependent on any co-operation or consent with the original
owner.
ORIGINAL METHOD
No cooperation from the predecessor in the title
No transfer ownership
Not limited to things belonging to no one (res nullius)
Cases of accession, prescription and expropriation
thing owned by another but no transfer of ownership
takes place
Accession (accessio)
Accession can be defined as an original method of acquiring ownership that takes
place when an accessory thing becomes merged with a principal thing, with the
result
that the two things form one entity. The accessory thing loses its independence and
becomes part of the principal thing. The owner of the principal thing is the owner of
the
composite thing.
The join may be natural or artificial but must be permanent and by sufficient means.
It
must be obvious that the things have not been brought together temporarily. It must
still
be possible to identify the principle and the accessory thing.
Accession of movables to movables
Accession of movables to movables can be defined as an original method of
acquiring
ownership in terms of which an accessory movable becomes attached to a principal
movable in such a way that a single entity is formed and the ownership of the
principal
thing extends over the accessory thing which has lost its independence.
This form of accession always involves industrial or human intervention. The join
must
not give rise to manufacture and must be permanent and not easily separable.
Therefore, the owner of the principle thing becomes the owner, assuming the
following conditions have been met:
1. The attachment must not amount to specification.
2. The principle must be distinguishable from the accessory (so as not to
amount to mixing).
3. The attachment cannot be readily separable. This means the following:
a. It would be apparent to a reasonable person that the join was intended to be
permanent.
b. It is likely that the object will be joined for an indefinite period.
Examples
Painting
The painter becomes the owner of the canvas belonging to someone else that he
painted on, provided the painting is more valuable than the canvas.
Weaving
The owner of the material becomes the owner of the weaving thread even if the
thread
is more valuable than the material. Owner of the thread has a claim for damages or
enrichment
Writing
If a person writes on someone else's paper, the writer is the owner of the written
piece.
Owner of the paper must be compensated for the paper.

4.2. This form of accession always involves industrial or human intervention. The join
must not give rise to manufacture and must be permanent and not easily separable.
Therefore, the owner of the principle thing becomes the owner, assuming the
following conditions have been met:
1. The attachment must not amount to specification.
2. The principle must be distinguishable from the accessory (so as not to
amount to mixing).
3. The attachment cannot be readily separable. This means the following:
a. It would be apparent to a reasonable person that the join was intended to be
permanent.
b. It is likely that the object will be joined for an indefinite period.

4.3 Differentiate between accession and manufacturing as original methods of

acquisition of ownership
Accession can be defined as an original method of acquiring ownership that takes
place when an accessory thing becomes merged with a principal thing, with the
result
that the two things form one entity. The accessory thing loses its independence and
becomes part of the principal thing. The owner of the principal thing is the owner of
the
composite thing.
Manufacture is as an original method of acquiring ownership in terms of which
ownership is acquired by the unauthorized production of completely new thing, using
a
thing belonging to another (e.g. a person making wine from another person’s grapes
or
oil from another person’s olives)