TOPIC 03 – PROPERTY LAW

1. Introduction to Property
2. Personal vs. Real Rights
3. Distinction between movable and immovable property
4. What is Ownership?
5. Acquisition of Ownership
5.1 Original acquisition
5.2 Derivative acquisition
6. Sectional Title
7. Servitudes
7.1. Personal servitudes
7.2. Praedial servitudes

Prescribed Readings
Appendix B Sharrock: Outline of certain aspects of the law of property
Leave our occupational rights in immovable property, and mineral rights (pages pp
926 – 936, 938)

Learning Outcomes
• Understand what the property law encompasses;
• Know and understand the difference between personal and real rights;
• Know and understand the difference between movable and immovable property;
• Be able to explain what ownership entails and what is entitles an owner to do;
• Understand the ownership is not an absolute right and be able to list examples
evidencing same;
• Fully understand how ownership can be acquired by means of original and
derivative modes of acquisition of ownership;
• Be able to explain (including the requirements) and apply each original mode of
acquisition of ownership and present an example of each;
• Know how ownership passes by means of the derivative mode of acquisition of
ownership;
• Understand the significance of delivery and registration in the context of the
derivative mode of acquisition of ownership;
• Be able to explain (including the requirements) each constructive form of delivery.
• Understand how sectional tile ownership is distinguished from ownership of other
immovable property.
• Be able to explain terms which are common in sectional title law such as section,
unit, body corporate, managing agent, participation quota, trustee, exclusive use
area.
• Know the definition of a servitude.
• Know the similarities and differences of praedial and personal servitudes.
• Be able to list examples of both types of servitudes.
1. Introduction / Meaning of Property

• The law of property is also known as the law of things.

• The law of property deals with the rights of persons to one another in respect of
things external to persons.
• Property is everything which can form part of a person’s estate, including
corporeal things (tangible) and incorporeal (intangible) interests and rights.
• Things which are excluded from property are things not capable of human
control.
• A thing as a legal object has certain characteristics and is an object of real rights
o corporeality (can be observed with one of our five senses);
o external to humans (a human cannot be a legal object);
o independence (must exist separately, be defined);
o subject to juridical control;
o useful & valuable to humans.
• Humans are not things.
• Things can be classified into different categories
o movable vs immovable
o tangible/corporeal vs incorporeal
▪ Tangible/corporeal things can be seen, felt, heard, smelt or
tasted — they have physical existence
▪ Intangible/incorporeal things exist only in the kinds of men -
usually rights
o fungible (part of a class of things, eg a 330ml can of coke) vs non-fungible
(a specific painting)
o consumable vs non-consumable things
o divisible (where taking it apart does not affect the value, eg. piece of land
or bag of maize) v indivisible things (where taking it apart changes the
value, eg. a car).

FYI Note: Constitutional Protection of Property: Section 25 Constitution

(1) No one may be deprived of property except in terms of law of general application, and no
law may permit arbitrary deprivation of property.
(2) Property may be expropriated only in terms of law of general application -
(a) for public purposes or in the public interest; and
(b) subject to compensation, the amount, timing, and manner of payment, of which
must be agreed, or decided or approved by a court.
(3) The amount, timing, and manner of payment, of compensation must be just and equitable,
reflecting an equitable balance between the public interest and the interests of those affected,
having regard to all relevant factors, including -
(a) the current use of the property;
(b) the history of the acquisition and use of the property;
(c) the market value of the property;
 (d) the extent of direct state investment and subsidy in the acquisition and beneficial
capital improvement of the property; and
(e) the purpose of the expropriation.
(4) For the purposes of this section -
(a) the public interest includes the nation's commitment to land reform, and to reforms
to bring about equitable access to all South Africa's natural resources; and
(b) property is not limited to land.
(5) The state must take reasonable legislative and other measures, within its available
resources, to foster conditions which enable citizens to gain access to land on an equitable
basis.
(6) A person or community whose tenure of land is legally insecure as a result of past racially
discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament,
either to tenure which is legally secure, or to comparable redress.
(7) A person or community dispossessed of property after 19 June 1913 as a result of past
racially discriminatory laws or practices is entitled, to the extent provided by an Act of
Parliament, either to restitution of that property, or to equitable redress.
(8) No provision of this section may impede the state from taking legislative and other
measures to achieve land, water and related reform, in order to redress the results of past
racial discrimination, provided that any departure from the provisions of this section is in
accordance with the provisions of section 36(1).
(9) Parliament must enact the legislation referred to in subsections (6).

2. Personal vs. Real Rights

• Distinction b/w real rights & creditor’s rights (personal rights).

• Rights in respect of property are classified as real.
• Limited real right = Rights in a corporeal or incorporeal thing belonging to another
(ius in re aliena).
• It is often difficult to determine whether certain rights in corporeal things are
limited real rights or creditor’s rights. Distinction b/w real rights & personal rights
has become blurred in SA law.
• Types of real rights:
o ownership
o real & praedial servitudes
o mortgage, pledge & cession in securitatem debiti
o rights of the lessee by virtue of the huur gaat voor koop doctrine
o mineral rights
o leasehold
• The above is not a complete list. According to case law, any right will be regarded
as real right if:
o The person conferring the right intended it to bind successors in title of
property; AND
o constitutes a “subtraction from the right of ownership”.
• Whether it is a real right or not depends upon policy and expediency rather than
the application of any rule of law.
• Also take note of s63(1) of the Deeds Registration Act, 1937:
 Only real rights in immovable property can be registered.
 However, a deed containing a condition which fails (i.e. does not
restrict the exercise of any right of ownership), can still be
registered if the registrar deems, they are intimately linked to a
registerable condition.

3. Distinction b/w movable & immovable property

• Immovable property is things like land, trees, crops and buildings.

• The basic criterion for determining whether a corporeal thing is movable or
immovable is whether it can move or be moved from one place to another without
sustaining damage or losing its identity.
• “Annexed firmly to” and “attached permanently to” indicate immovables.
• Incorporeal property can be either movable or immovable.
• It depends on whether the incorporeal in question (usually a right) has as its
object movable or immovable property.

4. Ownership of Property

• What is ownership? The most extensive right re property; content of the right:

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• However, it is not absolute and is subject to numerous limitations imposed by

statute and common law. Some examples:
o An example of a limiting statute is the Physical Planning Act.
o Under common law the right of a landowner in respect of his property is
restricted in various ways:
▪ may not use it so as to be a nuisance to other property occupiers
▪ may not increase or otherwise interfere with the natural flow of
surface water across the land.
• Ownership is not confined to one person — two people may own undivided
shares in a single entity such as a piece of land.
• Each co-owner is entitled to use the item reasonably and in proportion to the size
of his/her share.
• Profits and losses incidental to the common property must be borne in proportion
to the co-owners’ respective shares
• A co-owner is free to alienate his undivided share without the consent of the other
co-owners

5. Acquisition of Ownership

Ownership in corporeal property can be acquired in TWO ways: original vs

derivative acquisitions:

Original Modes of Acquisition of Derivative Mode of Acquisition of

Ownership Ownership
- Independently acquired and not - Ownership derived from previous
derived from previous owner or owner;
predecessor. - Bilateral act with the co-operation of
- Unilateral act by the person acquiring previous owner is necessary.
that right.
Unilateral act Bilateral act
Original Modes of Acquisition of Transfer of ownership requires:
Ownership: agreement + “something more”:
1. Occupation - Immovable Property: Registration
2. Accession - Incorporeal Property: Cession
3. Specification - Moveable Property: Delivery (Actual or
4. Mixing and mingling constructive)
5. Separation or collection of fruit
6. Prescription Constructive forms of delivery:
7. Expropriation 1. Traditio longa manu
2. Traditio sybmolica
(need to know each of the above) 3. Traditio brevi manu
4. Constitutum possessorium
5. Attornment

(need to know each of the above)

5.1 Original Modes of Acquisition of Ownership

(i) Occupation / Appropriation

• A person takes passion of an unowned thing with the intention of becoming the
owner.
• Example:

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(ii) Accession
• A thing or a portion of a thing is incorporated by nature or artificial means into
another thing so that the former loses its identity and becomes an integral part of
the latter.
• The thing incorporated is known as the accessory.
• The thing into which it is incorporated is the principal thing.
• The owner of the principal thing becomes the owner of the new entity.

Accession of movables to immovables

• Anything planted or sown on land accedes to the land as soon as it has taken
root.
• In regard to movables attached by artificial means the courts have held that the
question whether the movable accedes to the immovable must be determined
considering whether the owner of the movable intended it remain attached for an
indefinite period.
• Important considerations from which an intention can be inferred are:

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Accession of movables to movables

• Ownership may also be acquired by accession where 2 movables are attached to
one another, e.g. where an arm or leg is welded to a statue or where thread is
woven into cloth.
• The things must not be easily separable.
• If they can be separated without great cost and without any diminution in the
value of the principal or accessory, then no accession occurs.
• Thus, an exhaust but not a tyre will acceded to a car.

(iii) Specification / Manufacture

• This takes place where a person creates a new thing which cannot be reduced to
its original form, out of materials belonging wholly or partly to another without
owner’s consent.
• Example:

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• Who becomes owner? ______________________________________________

(iv) Mixing or mingling

• Things belonging to different owners are mingled or mixed so as to lose their
separate identities and so as not to be separable, except perhaps at great cost.

• How is this different from accession? ___________________________________

• It can be distinguished from specification in that human creativity plays a
subordinate role in the creation of the mixture.
• What is the difference between 'Mingling' and ‘Mixing':

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• In the absence of agreement to the contrary, ownership in the final product is

acquired as follows:
o Mingling — owners of original liquids/metals become co-owners of mixture
in proportion to the value of their materials;
o Mixing — each owner of a solid acquires ownership of a physical portion of
the mixture, proportionate in size to the value of his solid.

(v) Separation or collection of fruits

• As a rule the owner of thing is entitled to enjoy its fruits and remains owner of the
fruits even where they have become separated from the principal thing.
• However, the right to take and enjoy the fruits of thing may be vested in another
party, e.g. a lessee.
• In these circumstances the other party acquires ownership in the fruits by
separation (whether by natural forces or human agency or collection or gathering.
(vi) Prescription
• The passing of time.
• A person becomes owner of a thing by prescription if he possesses it openly (vis-
a-vis the general public) and as if he were the owner of thew thing for an
uninterrupted period of 30 years.
• The person must hold the thing as his/her own or with the intention of keeping it
for himself/herself.
• If the person possesses the thing by virtue of some contract or legal relationship
which recognises the rights of the owner, or on the ground of a revocable
permission granted to him by the owner (i.e. on sufferance), he does not have the
intention of an owner and therefore does not satisfy the requirements of
prescription

(vii) Expropriation
• Various statutory enactments empower the state the acquire private property by
expropriation, usually against payment of compensation determined in
accordance with the value of the property.
• The procedure to be followed is set out in the Expropriation Act.

5.2 Derivative Mode of Acquisition of Ownership

• In most everyday transactions real rights are already in existence and are
transferred from one person to another, or are created with the cooperation of the
owner of the thing concerned, generally in pursuance of a contract, so that the
transferee derives his real right to a thing from the transferor.
• The transferee/acquirer succeeds to the predecessor's right, including any
benefits and restrictions attached to it.
• Ownership does not pass on account of contract.
• Additional and separate transaction required
• May take place simultaneously or subsequently
• Requirements:
o Transferor must be capable of transferring ownership (minor cannot);
o Must be effected by owner or his duly authorised agent (Nobody can give
what he does not have);
o Transferee must be capable of acquiring ownership;
o At the time of transfer (moment of delivery or registration), transferor
must have the INTENTION to TRANSFER ownership and the transferee
must have the corresponding INTENTION of ACCEPTING ownership;
▪ Thus in addition to the objective element of delivery or registration,
there must be a subjective or mental element.
▪ The correspondence of intentions or 'meeting of the minds' is
 referred to as a REAL agreement to distinguish it from the
agreement which gives rise to the duty to transfer the property.
▪ The principles applicable to general agreements apply here.
o Ownership must be accepted;

• Essentially contract PLUS “something more”. In this context the distinction

between movable and immovable property is important as the method of transfer
differs:
o Corporeal movables — delivery (various forms)
o Corporeal immovables — registration in appropriate deeds office
o Incorporeal movables (rights) — cession

Immovable Property: Registration of transfer:

• Registration in deeds registry of a deed of transfer in prescribed form;
• Must be prepared by a conveyancer and executed in the presence of the
Registrar of Deeds by owner of property or by an authorised by power of attorney
conveyancer;
• After registration, a copy of the deed of transfer (which is now the owner's title
deed) is returned to the owner;
• Sometimes with, for example expropriations, registration of transfer takes place
by way of endorsement on existing title deed.

Movable Property: Delivery (Actual or Constructive)

• The physical handing over of a thing (called actual or genuine delivery)
• Constructive delivery - various methods of transferring ownership (or other real
rights) by which no physical handing over of the thing concerned takes place

(i) Traditio longa manu (Delivery by the long hand):

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(ii) Traditio symbolica (symbolic delivery)

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(iii) Traditio brevi manu (Delivery by the short hand)

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(iv) Constitutum possessorium

• A suit bought and paid, but left with the seller for alterations;
• This is almost the opposite of delivery brevi manu;
• Transferor has and retains physical control of the thing but he acknowledges that
it will be thenceforth owned by, and held in the name of the transferee;
• Again, no overt act of delivery is necessary;
• Common in the business world;
• It provides a ready opportunity for a debtor to defraud his creditors by pretending,
in order to attain attachment, that the property has been transferred to another;
• The false impression created by the transferor retaining possession of the
property may induce creditors to extend credit to him;
• As a result, before accepting that delivery has taken place, the court will require a
clearly proved contractual arrangement justifying the transferor's continued
physical control of the property.

(v) Attornment
• Use: A dealer (A) sells a car and arranges finance for the purchaser. The Bank
(B) insist on acquiring ownership until the car is paid in full. The Car has already
been delivered to the buyer C;
• The thing is in the physical control a 3rd person, who holds it for the transferor;
• The parties and the 3rd person agree that the 3 rd person will henceforth hold
thew thing on behalf of the transferee;
• Ownership passes on conclusion of the agreement;
• The courts have accepted that the 3rd person may consent in advance to hold
the thing in the name of the transferee if and when the transferor and transferee
agree that it should be transferred;
• Here the 3rd person need not be informed of the agreement to transfer when it is
entered into;
• Ownership passes immediately when the agreement is concluded, provided the
3rd person is still in control of the thing at that time.

Note re constitutum possessorium, attornment and delivery brevi manu

• The courts scrutinize constitutum possessorium, attornment and delivery brevi
manu carefully as the underlying cause may be unlawful or detrimental to other
parties.
• The physical element is not altogether irrelevant but all forms of constructive
delivery have a common denominator - the subjective element (intention) of
transfer of possession predominates the transaction.

6. Sectional Title
• Sectional Titles Schemes are regulated by the Sectional Titles Act, 1986, and
the Sectional Titles Management Act, 2011 (Date of commencement October
2016).
• In this course, we are only looking at the Sectional Titles Act, 1986.
• What is the logic of sectional title?
o Common law position: The owner of land also owns everything
permanently attached to it. Not possible to acquire ownership of a section
of a property or a building (such as an apartment).
o Also compare to freehold property and homeowner’s associations.
• Establishment by opening and registering a sectional title scheme in the Deeds
Office: Plans registered in the Deeds office set out what part of the building /
land belongs to whom.
o A building and the land it's situated on may be divided into sections and
common property in the following way: the registered owner of the land
(referred to as the 'developer') must cause a draft sectional plan to be
prepared in accordance with the Act and submitted to the Surveyor-
General, together with the prescribed documents and particulars. Once the
Surveyor-General's approval has been obtained, the developer may apply
to the Registrar of Deeds for the registration of the sectional plan and for
the opening of a sectional title register
• Terms you need to be familiar with in sectional title law:
o Section:

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o Unit:

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o Common property:

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o Exclusive Use Areas:

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o Body Corporate:

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The body corporate is responsible for inter alia:

▪ Control, administration and management of common property in the
interest of all owners
▪ Enforcement of conduct rules
▪ It has perpetual succession and can be sued and can sue in its own
name.
▪ The power to establish a fund for payment of expenses such as
rates and electricity and require the owners to make a contribution
towards the fund
▪ This is usually called for in the form of a monthly levy

o Trustee:

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 o Managing Agent: Often the trustees appoint a managing agent to assist
them with their duties.

o Participation quota: The extent of a person's interest in the body corporate

is determined by the 'participation quota' of his section. This is a decimal
fraction arrived at by dividing the floor area of the section by the floor area
of all the sections in the building. Determines the extent of the undivided
share and the levy.

7. Servitudes

Definition of a servitude
A limited real right to the movable or immovable property of another person (owner)
which grants the entitled person certain specific entitlements and these entitlements
limit the entitlements of the owner re the thing in one way or another.

Personal v Praedial servitudes: Similarities vs Differences

Praedial Servitudes Personal Servitudes

Example (more below):
Right of Way: Street, Property A borders Eskom Right to draw power lines over a
onto the street, behind property A there is property
property B. i.e. in order for the owner of
Property B he needs to cross A’s
property (eg. panhandle entrance).

Similarities:
Both are real rights and, therefore, binding upon successors in title of the owner of
the servient property.
Holder of either a personal or praedial servitude is obliged to exercise it civiliter
modo (in a reasonable and considerate way, so as to cause as little harm or
inconvenience as possible to the owner of the servient land)
Neither a personal nor a praedial servitude may, as a rule, impose on the owner of
the servient property a positive obligation (an obligation to do something rather than
to refrain from doing something or allowing the servitude holder to do something)
Differences:
Constituted in favour of successive Constituted in favour of a particular
owners person
Always two properties involved: There is
always a dominant & servient tenement.
The holder of the servitude is the owner
of the dominant tenement.
Perpetual, but can be made subject to a Extinguished by death of holder / 100 yrs
resolutive condition for company (C/L + Deeds Registry Act)

Only over immovable property (i.e. there Can be over movable or immovable
are two immovable property) property
The limited real right vests in the holder The rights are personal to a holder. i.e.
in his capacity as owner of the dominant you cannot transfer it, you can just
land. So, it is automatically transferred to contract to allow someone to exercise
the new owner, where the dominant land your rights. But the servitude must
is alienated. (incidental and inseparable subtract from the dominium of the owner
to ownership of dominant land) & must be enforceable against
successors of the owner & 3rd parties.
Common: Common:
Iter — right to travel across a servient
tenement Right to run/erect power lines
Actus — the right to drive cattle across
the servient tenement Usufruct
Via — general right to passage, including
iter and actus Usus:
Aquaehaustus — right to draw water
from servient tenement Habitatio
Pasturage — right to pasture cattle on
servient tenement
Prospectus — right to an open view
across servient tenement
Servitus altius non tollendi — right to
prevent owner of servient tenement from
raising height of buildings on his land

• Rebuttable Presumption that ownership of thing is unencumbered by servitude

• Praedial v Personal Servitude  look at intention of the parties
• Therefore, if servitude but not sure which  take less cumbersome  = Personal
Servitude