Date: 15 April 2021

21 April 2021

Time: 10h00

Student: Dominique Botha

LEARNING UNIT 2: OWNERSHIP

Theme 1 – Characteristics of Ownership

LO1: Discuss the common law concept of ownership according to

its characteristics and the entitlements of owners

What does ownership mean by way of definition?

 Dictionary definition: the act, state, or right of possessing

something

What does ownership mean in law?

 Plena in re potestas: the most complete and absolute right

that a person can have

 The owner of the property can do with the property as she

pleases within the limits of the law. Ownership is the most

complete real (absolute) right that a person can have in a thing

Page | 1
© Copyright 2021
 Limitations?

o S25 of the CRSA

o Statutes

o Limited Real Rights

o Personal Rights

 The nature of the content of ownership will vary due to the

effluxion of time and the needs of society

 There is a theoretical completeness to the right of ownership

and this is known as the nemo plus iuris principle. This

emphasises yet again that ownership is the most complete real

right in comparison to other real rights:

o The owner has all possible proprietary rights in the

property

o The owner potentially has limitless entitlements to the

property

Page | 2
© Copyright 2021
 ius utendi

ius ius
possedendi abutendi

ius
ius negandi
vindicandi

ius fruendi

LO2: Discuss the various examples of limitations on ownership

that are in the public interest with reference to relevant case

law

 Limitations on ownership can exist through objective rights

and subjective rights

LO3: Advise either party to a dispute on the nature of co-

ownership with reference to the rights and duties of co-owners

as well as the content of co-ownership

What are the forms of ownership?

 Individual Title:
o Only one person holds all the ownership entitlements by

herself

Page | 3
© Copyright 2021
  Co-ownership

What is co-ownership?

 Co-ownership is ownership by more than one person

simultaneously

A A
33,3% 50%

FARM FARM
B C B C
33,3% 33,3% 30% 20%

 (1) The undivided co-ownership share:

Page | 4
© Copyright 2021
 o Firstly, let’s discuss what a share is:

→ Dictionary Definition: a part or portion of a

larger amount which is divided among a number of

people, or to which a number of people contribute

→ Property Law Definition: an interest the co-owner

has in a property which is proportionate to the

other shares held by the other co-owners.

o Note the concept of “the alienation of the undivided

share”

→ This means that a co-owner may do with her share

as she please

o The co-owner is allowed reasonable use of the commonly

held-property (this was validated in the case of Erasmus

v Afrikander Proprietary Mines Ltd)

o The agreement for the co-ownership arrangement:

→ Must be reduced to writing for:

 Clarity

 The regulation of allocation

 The binding of inter partes (personally binding

parties thus creating personal rights and

obligations between the parties)

 The commonly-held property:

o This is a property owned by various co-owners

Page | 5
© Copyright 2021
 o Regarding the commonly-held property, the alienation of

the property is more restricted than that of the

undivided co-ownership share

→ Therefore, one co-owner cannot dispose or share

her share in the property with other co-owners

o What is unreasonable use?

→ Erasmus v Afrikander (unreasonable use is):

 The change in the use and enjoyment of the

property

 The unilateral granting of rights to a 3rd party

 The exercising of entitlements to prejudice

any of the other co-owners

What are the rights and duties of co-owners?

- Reasonable use - Alienation of the merx

- Profit, income and - Maintenance and
fruits expenses (this will be in
- Right of veto (right to specific relation to
vote) necessary expenses)

Page | 6
© Copyright 2021
LO4: Distinguish between free co-ownership and bounded common

ownership with reference to the entitlements and obligations of

co-owners

With free co. there is no under With bound co. there is an

relationship binding the co- underlying relationship. Therefore:

owners. Therefore:
➢ Any co-owner can alienate
and burden her undivided
share unilaterally
➢ Any co-owner can terminate
her co-ownership
unilaterally
➢ One co-owner cannot
burden/alienate the undivided
co-ownership share while the
underlying relationship still
exists
➢ One co-owner cannot terminate
the co-ownership unilaterally
while the underlying legal
relationship still exists

LO5: Critically discuss the various forms of statutory land use,

including how each form functions as well as the legal nature

thereof, specifically regarding:

 Sectional Titles:

Page | 7
© Copyright 2021
 o A sectional title, describes

separate ownership of units

or sections within a complex

or development. When one

buys into a sectional title

complex, she purchases a

section or sections and an

undivided share of the common property. These are

collectively known as units. Sectional title dwellings

comprise mini subtype houses, semi-detached houses,

townhouses, flats or apartments, and duet houses

o Legal nature of a sectional title?

 Share block Schemes

o A share block scheme is an alternative form of property

ownership. Rather than full-title ownership, share block

schemes allow for a single company to own a particular

development, while allowing individuals to buy the right (a

share) to use a specific

unit, or space, within the

development

o Legal nature of a share

block scheme?

 Time-sharing Schemes

Page | 8
© Copyright 2021
 o This is a form of fractional

ownership or a fractional right

to or a fractional interest in

the exclusive use or

occupation, during determined or determinable periods

during any year

o Legal nature of a time sharing scheme?

 Housing Development Schemes (for retired persons)

o This is another form of

ownership, in most cases

these schemes are

developed as sectional

title schemes, and can also be share blocks, club

memberships or where the relevant Minister often, by

notice in the government gazette, declares a housing

development scheme

→ Legal nature of a housing development scheme?

Tutor:
Aaliya Pillay
LLM Candidate
LLB Graduate
BA Law Graduate
University of Pretoria

Page | 9
© Copyright 2021