RIGHTS IN PROPERTY

LECTURE OBJECTIVES
1. What is a real right?

2. What is a limited real right?

3. What is a personal right ?

4. Distinguish between real rights and personal rights.

5. Explain the 2 theories used to distinguish between real and

personal rights (personal study).
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 RIGHTS IN PROPERTY

• South African law acknowledges a variety of rights in

respect of property

• At the heart of the common law of property is the

distinction between “real” and “personal” rights. These are
often referred to as rights “in rem” and rights “in
personam”

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 RIGHTS IN PROPERTY

• A real right refers to a legal relationship

between a legal subject (holder) and a legal
object or thing (res). This right bestows on the
holder of the right a direct power and absolute
control over the thing.

• A limited real right is a real right held by a non-owner

in the property owned by another (ius in re aliena).

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 RIGHTS IN PROPERTY

• Ownership is the most complete real right, and is the

only real right held in one’s own property (ius in re
propria).

• A limited real right is a real right held by a non-owner

in the property owned by another (ius in re aliena).

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 REAL RIGHTS AND PERSONAL RIGHTS (CREDITOR’S
RIGHTS/CLAIM RIGHTS)

Proprietary
relationships

Rights Possession

Personal
Real Rights Rights/Creditor’s
rights

Relationships relating to property

• The only real right recognized in our law is the right of
ownership. This is where a person has complete title (or
control) over a thing or property.

• A person may also hold a limited real right in relation to

property. This is a subcategory of real rights but an
important distinction is that they are held by a person in
relation to someone else's property. One can never have a
whole real right in relation to someone else's property. It is
a right held by a non-owner in property owned by another
(ius in re aliena)

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• The only right in a corporeal or incorporeal thing belonging
to oneself is a real right.

• The right in a corporeal or incorporeal thing belonging to

another person is a limited real right.

• A real right or limited real right therefore is always a right in

a corporeal or incorporeal thing.

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REAL RIGHTS AND PERSONAL RIGHTS (CREDITOR’S
RIGHTS/CLAIM RIGHTS)

• A right against a person on the other hand is called a

creditor’s right or a personal right.

• A personal right against a person entails that such a person

must do something, or refrain from doing something. In
other words the holder is owed a performance.

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REAL RIGHTS AND PERSONAL RIGHTS (CREDITOR’S RIGHTS/CLAIM RIGHTS)

• Personal rights, creditor’s rights and claim rights are used interchangeably.

• A personal right is one against another person for the performance of an

obligation, i.e.: the other person must either do or refrain from doing
something. It usually originates from an obligation. These rights are usually
created by contract, delict, unjust enrichment or unauthorized management
of someone else’s affairs.

• Real rights are often described as absolute rights and as such can be
enforced against anyone.

• Personal rights on the other hand, can only be enforced against the other
party to your contract.
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REAL RIGHTS AND PERSONAL RIGHTS (CREDITOR’S RIGHTS/CLAIM
RIGHTS)
Importance of distinguishing between real rights and personal rights

1. Type of right determines the extent and against whom it can be enforced
and the type of remedy for its protection.

2. Real rights are dealt with in property law while personal rights are dealt
with in the law of obligations (contract and delict).

3. Real rights are sometimes transferred by registration or delivery while

personal rights are transferred by way of cession.

- hierarchy of rights…
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Real Rights Personal Rights

• Relationship between person and property Relationship between person and person

• Enforceable against whole world Only enforceable against specific other person

• Absolute Right Relative Right

• Registrable at Deeds Office Not registrable, except in very limited

circumstances

• Transferred by registration Transferred by cession

• Dealt with under Property Law Dealt with under Law of Obligations

• Protected by property remedies Protected by contractual / delictualremedies

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NB: SELF-STUDY! - Two main theories used to distinguish between real
rights and personal rights – PERSONALIST THEORY AND CLASSICAL
THEORY

PERSONALIST THEORY
• Places emphasis on the person against whom the right may be
enforced.

• In terms of this theory, a real right operates absolutely in the sense

that it is enforceable against the whole world e.g ownership. A
personal right (creditor’s right or claim) on the other hand has
relative operation. It is only enforceable against the person who is
obliged to perform e.g a delictual claim is only against the particular
person who caused damage.
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REAL RIGHTS AND PERSONAL RIGHTS (CREDITOR’S RIGHTS/CLAIM
RIGHTS)

PERSONALIST THEORY
• It highlights the person against whom the right operates i.e, real
rights operate against everyone while personal rights operate
against a specific person. In terms of the classical theory, a real right
operates absolutely while a personal right has relative operation.

• In other words, personalist theory is based upon how the rights are
enforced. In terms of this theory, real rights are absolute and can be
enforced against everyone whereas a creditor’s right is relative and
can only be enforced against a specific person.

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REAL RIGHTS AND PERSONAL RIGHTS (CREDITOR’S
RIGHTS/CLAIM RIGHTS)
CRITICISM

• It over emphasizes the absolute operation of real rights. Such

rights do not always end or necessarily operate absolutely e.g
where an owner is a estopped from exercising his ownership
against another person.

• Real rights are not the only ones that operate absolutely.
Personality rights (e.g right to reputation, or physically integrity)
and immaterial property rights (e.g copyright and patent rights)
also operate absolutely.
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REAL RIGHTS AND PERSONAL RIGHTS (CREDITOR’S RIGHTS/CLAIM
RIGHTS)
CLASSICAL THEORY
• It distinguishes between real and personal rights with reference to the
nature of the object to which each right pertains.

• According to this theory real rights concern the relationship between

a person and a thing.

• A real right confers direct control and the right of disposal over a
thing. Personal rights on the other hand, concern the relationship
between persons. A personal right entitles the creditor to claim
performance from a particular person only. The object of the right is
therefore performance.
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REAL RIGHTS AND PERSONAL RIGHTS (CREDITOR’S RIGHTS/CLAIM
RIGHTS)

CLASSICAL THEORY
• Classical theory emphasizes the difference between the objects of
a real right and a creditor’s right respectively.

• In terms of this theory, a real right is the right of a person in a thing

whereas a creditor’s right is a right of a person against another
person.

• In a real right, the thing itself is the object of the right and in a
creditor’s right, the object is the action/performance by the debtor.
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REAL RIGHTS AND PERSONAL RIGHTS (CREDITOR’S
RIGHTS/CLAIM RIGHTS)

CRITICISM
• It is sometimes difficult to determine what is meant by a
“direct relationship with a thing.” There are rights that have
a thing as their object but they are not real rights e.g right
to acquire a thing (car) person will have a right to the car
but this is a personal right.

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REAL RIGHTS AND PERSONAL RIGHTS (CREDITOR’S
RIGHTS/CLAIM RIGHTS)

ACTIVITY
Explain and criticize the different tests/theories which are
used to determine whether a specific right is a real or a
personal (creditor’s) right.

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REAL RIGHTS AND PERSONAL RIGHTS (CREDITOR’S
RIGHTS/CLAIM RIGHTS)
DISTINGUISHING CRITERIA
• Typical real rights and personal rights have the following
distinguishing characteristics respectively:

1. OBJECT
The object of a real right is a corporeal/incorporeal thing
whereas the object of a personal right is performance (to do
or not do something/give)

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 DISTINGUISHING CRITERIA
2. CONTENT
The holder of a real right has a direct claim to and a right of
disposal over a thing whereas the holder of a personal right is
entitled to claim performance from a specific person.

3. REMEDIES
The holder of a real right can enforce his/her real right by means
of a real action, such as the rei vindicatio of the owner, which can
be instituted against anyone who is unlawfully in control of the
thing; while the holder of a personal right enforces his/her right
by means of a personal action such as the condictio furtiva.

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 DISTINGUISHING CRITERIA
4. ORIGIN
Real rights have their origin in legal facts other than obligations e.g
delivery, accession; personal rights on the other hand come into
existence through obligations e.g in terms of a contract or delict.
Personal rights have their origin in obligations.

5. ABSOLUTENESS
Real rights are absolute in principle; the holder of the right can
vindicate his/her thing from whomever is in unlawful control of the
thing. Personal rights on the other hand are relative in principle:
the holder can enforce his/her right only against the person who is
obliged to perform in terms of an obligation e.g contract/delict
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 DISTINGUISHING CRITERIA

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• Classifying rights as either real or personal is necessary in SA
because we have no numerus clausus of real rights.

• Apart from the theories (Classical and Personalist)

developed to determine whether one is dealing with a
real/personal right, courts also formulated a test i.e
subtraction from the dominium (ownership) test.

• WHEN THE DISTINCTION IS STILL HARD TO MAKE?

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 NEXT LECTURE

CASES

i. Ss 3(1)(r), 63(1), 63(2) and 102 of the Deeds Registries Act 47 of

1937.
ii. Ex Parte Geldenhuys v The Registrar of Deeds 1926 OPD 155;
iii. Lorentz v Melle 1978 (3) SA 1044 (T);
iv. Kain v Khan 1986 (4) SA 251 (K);
v. Pearly Beach Trust v Registrar of Deeds 1990 (4) SA 614 (C);
vi. Cape Explosive Works Ltd and Another V Denel (Pty) Ltd and
Others 2001 (3) SA 569 (SCA)

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 SUBTRACTION FROM DOMINIUM TEST
• Classifying rights as either real or personal is necessary in SA because we
have no numerus clausus of real rights.

• Apart from the theories (Classical and Personalist) developed to

determine whether one is dealing with a real/personal right, courts also
formulated a test i.e subtraction from the dominium (ownership) test.
The test was formulated in Ex Parte Geldenhuys (full set of facts?) as
follows -
“one has to look not so much to the right, but to the correlative
obligation. If that obligation is a burden upon the land, a subtraction
from the dominium (ownership), the corresponding right is real and
registrable; if it is not such an obligation, but merely an obligation
binding o some person or other, the corresponding right is a personal
right, or a right in personam, and it cannot as a rule be registered.”
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 SUBTRACTION FROM DOMINIUM TEST
• CRITICISM
1. Test does not enable one to identify ownership i.e the most
complete/important real right in SA. Test is only applicable
when ownership has already been determined. COUNTER:
test was not developed to determine the real right of
ownership which is clear and has been resolved. The test
was developed to determine which rights qualify as limited
real rights to land which can be registered.
2. Some personal rights can also impose restrictions on
ownership. COUNTER p61-62.

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