LAW OF PROPERTY

Lecture: 5: part 3
Chapter 7 : Limitations on ownership
Limitations on ownership
• Ownership does not come with absolute and unlimited entitlements regarding property.
• There are several limitations on an owner in the exercise of his entitlements of
ownership.

• Limitations on ownership

• 1. Statutory limitations
• 2. Creditor’s rights of third parties against the owner
• 3. Limited real rights of third parties in the property
• 4. Provisions of neighbour law
Limitations on ownership
• Self Study

• Statutory limitations
 There are a number of provisions that limit the owner’s entitlements regarding his
property.
 This is usually because an owner is expected to exercise his entitlements in the interest
of the community

• Creditor’s rights of third parties against the owner.

• Limited real rights of third parties in the property
Limitations on ownership
• NB!!

• Neighbour law

• General – the owner’s exercise of entitlements in respect of his land is limited, not in
the interests of the community, but in the interest of landowners and users of adjacent
or nearby land.

• Purpose
 Harmonisation of neigbouring owners’ or users’ interests

• By weighing their rights and obligations in the exercise of entitlements against each
other in order to balance conflicting ownership interests.
• The landowner must exercise his entitlements iro his land reasonably and, on the other
hand,
• The neighbour must tolerate this within reasonable bounds.
Limitations on ownership
• N.B!! Nuisance
• Neighbour law requires that land be used in such a way that another person is not
prejudiced or burdened.

• If an owner or occupier of land, in the exercise of his entitlements, should

inconvenience a neighbouring owner or occupier by creating or allowing a situation as
a result of which his neighbour suffers damage or if the neighbour is disturbed in the
use and enjoyment of his property, he acts unreasonably. (see Gien v Gien 1979 T).
Limitations on ownership
• Remedies

• (a) If a land user (owner or occupier) through his unreasonable actions causes
patrimonial loss or personal injury to his neighbour and, therefore, commits a delict, the
neighbouring owner or occupier has recourse to delictual remedies.

• (b) Such actions will also give the owner or occupier common law property law
remedies since they constitute an infringement of ownership or the right of occupation
(or the entitlements arising from ownership or the right of occupation). (Remedies
discussed in chp 10)

• The one approach need not, however, exclude the other.

• The infringement can, in certain circumstances be of a delictual nature (the causing of
patrimonial loss or infringement of a personality right) while,
• In other circumstance, it can be and infringement of entitlements of the owner or
occupier only and, therefore, and infringement of a real right
• 1. Nuisance in the narrow

• Consists of an infringement on the neighbour’s use and enjoyment of his land, which
constitutes an infringement of a personality right (e.g., his health) or an entitlement of
use (e.g., his right to the undisturbed enjoyment of his property), by means of noise,
smells, gases and so on.
• These infringements can normally be prohibited by means of an interdict.

• Reasonableness is used as a point of departure.

• This is done by considering the following:

• (a) The nuisance must usually be repetitive or continuous, since a single action of short
duration must be tolerated, except if there is a reasonable expectation that the activity
will be repeated.

• (b) Only annoying actions which would be unreasonable in the opinion of the community
can be seen as an unusual activity.
Limitations on ownership
• (c) The action or activity must be a nuisance according to a normal person.

• Prinsloo v Shaw – the standard to be taken must not be that the perverse or finicking
or overscrupulous person, but of the norman man of sound and liberal tastes and
habits.

• (d) Aspects like the location of the properties,

• The zoning of the properties as residential,
• Business or industrial areas,
• The habits of inhabitants and the question whether the health of the neighbour might be
affected,
• Are important in the determination of the reasonableness of the actions.
Limitations on ownership
• Read case law NB!!!
• The application of the criterion of reasonableness (Examples)

• Gien v Gien – A farmer had an issue with baboons raiding his vegetable garden, so he
installed an apparatus that made noises at frequent intervals, day and night, to chase
them away. This was in a quiet rural area and the noise could be heard by and was
disturbing the sleep of the neighbours. Respondent contended that he was doing it for
and in his own property to protect his property and could not be a nuisance. The
applicant approached court for an interdict to restrain respondent from using it in a way
that causes a nuisance.

• Court held that ownership is the most complete real right a person can acquire with
regard to a thing, and that an owner can, as a rule, act upon and with his property as he
please, however, the owner’s apparently unrestricted freedom of use exists within the
limits of the law (e.g limited by objective law and the rights of others)
• Neighbour law
• Court held that when rights of neighbours conflict, the limits of each right are
determined by creating correlative obligations for both owners in terms of which each
owner must endure the normal exercise of his neighbour’s rights. Each owner must
also take care to exercise his own rights in such a manner so as not to transgress the
boundary between his and his neighbour’s rights (if he transgresses the boundary, he is
no longer exercising his own rights but intruding upon those of his neighbour).

• Despite the complaints of the applicant, the respondent did not relent with the noise.
The parties lived in a quiet, residential area. It was possible for the respondent to
remove certain parts of the apparatus, thus muffling the sound but still allowing it to
fulfil its purpose, and furthermore it was not necessary for the apparatus to work day
and night. A landowneris entitled to require from his neighour that he not make more
noise than is reasonable in the exercise of his economic activities. The noise was
adversely affecting farming activities, and the respondent was merely using the
apparatus to protect his vegetable garden (maintained for personal use) which had little
economic significance.

• The respondent was prohibited by means of an interdict to use an apparatus which, by

means of a cracking noise, was intended to scare away monkeys and baboons from his
garden, because of the nuisance which the cracking sound caused for the neighbour.
• Laskey v Showzone – an interdict was granted to prevent loud noise from a
restaurant, which noise was in contravention of municipal noise control regulations. The
interdict was temporarily suspended to enable the respondent to comply with noise
control regulations.

• Allaclas Investments v Milnerton Golf Club – golf balls from a neighbouring golf
course infringed on the landowner’s enjoyment of his property. A mandatory interdict
that the Gold Club must prevent such and infringement was granted.
• N.B!!
• 2. Nuisance in the wider sense

• Consists in the infringement of the neighbour’s exercise of entitlements in general, or

actions by the neighbouring owner or occupier that cause damage.
• In such circumstances compensation can be claimed or the infringement can be
prohibited by means of an interdict.

• The actio legis aquiliae – used to claim compensation for damages.

• (discussed in chapter 10)

• Actio legis aquiliae – if a thing has been damaged or destroyed or destroyed in an

unlawful and culpable (intentional or negligent) way, the owner can claim damages with
the actio legis Aquiliae for patrimonial loss from the person who caused the damage.

• Requirements
• (a) An action pertaining to a thing
• (b) Which in an unlawful way and
• (c) performed with a culpable disposition (intent or negligence)
• (d) resulted in
• (e) damage or injury to owner
Limitations on ownership
• Examples

• Kirsch v Pincus – the planting of willow trees by the defendant next to the boundary
of a malt manufacturer caused the willow leaves to fall amongst the wheat on the
cement floors where it was being dried. Because of the nuisance caused but the
leaves, the defendant was ordered to pay compensation to the plaintiff.

• Malherbe v Ceres Municipality – leaves from oak trees next to the street blocked the
gutters of appellant’s building and he alleged that the roots had damaged the
foundations and walls of the building. His application for an interdict was denied
because it is normal practice to plant oak trees next to streets
Limitations on ownership
• Nuisance in the wide sense which causes damage to the neighbour, constitutes a
delict.

• Elements of a delict

• (a) an act or omission (in circumstances where there is a legal duty on a person to act);
• (b) which violates the law (unlawfulness);
• (c) committed in a culpable way (intent or negligence);
• (d) which action caused (causality)
• (e) damage or injury to the party.
Limitations on ownership
• Regal v African Superslate

• The legal predecessor of the respondent allowed slate waste to accumulate in a place
from where it was being washed onto appellant’s land. The omission to prevent this
spillage of the slate was unlawful, but because of the fact that it would have been
extraordinarily expensive and unpractical (and therefore unreasonable) to expect
respondent to prevent the slate from accumulating further, the appellant’s application
was denied.

• Important aspects in the decision.

• (a) The English law regarding nuisance does not form part of the South African
common law and the determination of reasonableness must be made on the basis of
Roman-Dutch principles, even if these principles are not as clear as the English
precedents.
Limitations on ownership
• (b) Reasonableness is the determining criterion in the weighing of the interests of the
various neighbouring owners and occupiers. The exercise of entitlements must be
within reasonable limits and the neighbour must tolerate this within reasonable limits.
• There are, therefore, mutual obligations on neighbours.

• (c) where the unlawful actions of the neighbouring owner or occupier cause damage to
his neighbour, liability must be determined with reference to the requirements of the
actio legis aquiliae
• Culpability in the form of intent or negligence is a requirement for this action.
• This was not discussed in detail in the case since it is not a requirement for an interdict.

• SELF STUDY: nuisance and abuse of rights; lateral and surface support.
• Encroachments

• Two kinds:
• 1. encroachments from buildings
• 2. encroachments from branches and roots of plants planted on the neighbouring land.

• General rule: the landowner’s entitlements extend into the air above the land and into
the earth below the land (cuius est solum rule).

• Interference with these entitlements of the owner can result in various remedies.

• Buildings

• In common law:
• The landowner’s entitlement to build on his land was virtually unlimited.
• Currently it is limited by various statutory measures.
• However, because of the application of the cuius est solum rule,
• A landowner may not exceed the vertical boundaries of his land.
• The foundations of buildings or additions may therefore not exceed the boundaries
under the ground, nor may such additions exceed the boundaries in the air.

• If there are such encroachments, the landowner has certain remedies.

• Remedies

 (a) removal of the encroachment,

 (b) Compensation to the owner,
 (c) Transfer of the encroaching section to the encroacher and compensation to the
owner.
 (d) Termination of occupation of the encroaching section by the encroacher and
compensation by the owner to the encroacher.
• (a) Removal

• The owner may demand that the encroaching parts of the building be removed,
although he may not remove them himself – Smith v Basson

• Factors to be considered are:

• Reasonableness and
• Fairness

• The court must exercise its discretion of reasonableness of neighbour law – Rand
waterraad v Bothma.

• The factors are determined by:

• The lapse of time since the owner became aware of the encroachment,
• The nature and degree of encroachment and
• The cost of removing the encroachment in relation to the damage suffered by the
owner.
• (b) Compensation

• Can be awarded to the landowner if he did not exercise his right to removal or
• If it would, be unreasonable to demand removal.
• The court has a wide discretion to award compensation in circumstances where it
would be unreasonable or unjust to order removal.

• (c) Transfer and compensation

• Defendant cab be ordered to take transfer of the part of the land on which
encroachment took place as an additional order to the payment of compensation.

• In this instance, compensation includes:

 The cost of transfer of the part of the land,
 The value of the part without the encroaching improvement and
 Payment of damages because the encroaching action took away part of the
landowner’s land – Meyer v Keiser.
 The defendant, cannot, however, claim transfer of the whole property on which the
encroachment took place against payment.
• (d) Termination and compensation

• The landowner can terminate the defendant’s occupation of the encroachment building,
• But must then compensate the defendant for the value of the improvements made on
his land. (chp 19 calculation of improvements)

• Because of the application of the criterion of reasonableness, this order will only be
made if the encroachment is such that it constitutes an independent building and not in
circumstances where the encroachment is slight and forms part of the building on the
neighbouring land.
• Branches, leaves and roots

• Where branches and leaves of plants encroach on the air space above a landowner’s
land or
• If the roots of plants encroach on the land under the surface,
• The remedies are not the same as in the case where buildings encroach.

• Remedies

• (a) Cutting off or removal

• The landowner can request that the owner of the neighbouring land cut off or remove
the encroaching branches and leaves.
• If the neighbour does not do this within a reasonable time, the landowner can ask for
an order to remove or remove the encroachments himself – Malherbe v Ceres
Municipality.
• An order to remove, will be granted only if the landowner has given the neighbour
reasonable time to remove the encroachments.
• The landowner may not keep the chopped off branches, except if the owner of the trees
gives permission or neglects to remove the branches, leaves and fruit.
• (b) if the plants are planted in the neighbour’s land,
 These plants, after taking root, will become the property of the neighbour through
implantatio and
• He can then remove and keep them at will.
• The neighbour can, however, not insist that these plants should be removed by the
defendant on the neighbour’s land – Smith v Basson

• (c) if the roots of trees planted on the neighbour’s land encroach on the land of a
landowner,
• He can remove the roots himself – Bingham v City Council of Johannesburg.
• There is no authority that a landowner can get an order for removal against the
neighbour
• The possibility exists that the landowner can, based on nuisance caused by the trees,
get an order for the removal of the trees.
• Interference with the natural flow of water

• A distinction is made between rural and urban land.

• Rural land

• An owner of lower-lying rural land is obliged to show greater tolerance for water flowing
onto his land from his neighbour’s higher-lying land than his urban counterpart.
• The flow of water to a neighbour’s land may, in rural land, be influenced by the
reasonable cultivation of and building on the land.

• Reasonable cultivation implies that the interests of the neighbour must always be kept
in mind
• Urban land

• Every landowner is also obliged to accept the natural flow of rainwater from higher-
lying land.

• Williams v Harris – it was held that several factors have to be taken into consideration
to determine whether the natural flow was unreasonably disturbed by building or
construction, namely the concentration, volume or direction of the flow was disturbed to
such an extent that it caused damage or nuisance to the lower-lying owner.

• Pappalardo v Hau – the court held that the burden of proof rets on the owner of the
higher-lying land if it is alleged that building activities on his property have disturbed the
natural flow of water to lower-lying property.
• Elimination of danger

• There is an obligation on landowners to eliminate dangers that originate from their land
within reasonable limits.

• E.g., landowners who keep wild or dangerous animals or poisonous plants on their
land, must take reasonable precautions that neighbours or visitors are not threatened.
• If the animals escape or the plants spread, the landowner is eligible to compensate his
neighbours for any resulting damage.

• An owner of cattle which strayed on the road is liable for damages to a vehicle which
collided with the cattle.

• The landowner’s conduct in protecting his property is objectively seen as reasonable.

• NEXT: Original acquisition of ownership