Law of Property Lecture Notes
Classification & Characteristics of Things – Ch. 2
Elements of a legal thing
o Corporeality
Should not be regarded as an essential characteristic of property
(reality of legal practice) = COMMON characteristic
Section 25 of Constitution reflects this (corp. not needed to
qualify as property)
FNB v SARS: Before you can invoke S25 of Constitution =
o Is it property? (Give property a purposive interp.)
Shoprite Checkers v MEC for Economic Development
o Liquor license deemed to be constitutional property
(under S25)
o Para. 50 = personal self-fulfillment in the holding of
property: advance eco. wealth maximization,
satisfaction of individual preferences, and secure living
a life of dignity in recognition of the dignity of others.
o Independence
o Impersonal
o Appropriability
Susceptible to human control
o Use and value
Economic/sentimental value
CONTEXT IS NB!
Definition case law: Shoprite Checkers; Opperman
Classification according to its:
o Role in commerce (i.e. negotiability)
Res omnium communes, res publicae, res divini iuris
Can be divided into things which are currently owned (res alicuius)
and which are not currently owned (res nullius).
Currently owned may be owned by individuals (res singulorum) or
coroporate bodies (res universitatis)
Abandoned property (res derelictae)
Water, minerals etc.: subject to Water Act…
o Nature
Corporeals + incorporeals
Movable + immovable
Divisable + indivisible
Co-ownership
Single + Composite
S: Exist independently (use & value)
C: Different components that make up a composite thing –
principal and accessory; auxiliary
, Khan v Minister of Law and Order: Motor vehicle = a part of a
car loses independence when attached to car (lose ownership)
o Look at character/identity and function
o Whoever owns the principal thing, owns the whole.
Fungibility v non-fungibility
Individual entities, identical but not individually determined
Consumable v non-consumable
Used up (food, fuel etc.)
Partial wear and tear (economic value must not be lower than
initial value)
Loans, re-use?
Chapter 3 – Rights
Two types of relationships in respect of property (proprietary relationships):
o Possession
o Ownership
Two types of rights:
o Real rights = registered (immovable property)
Right of ownership (most complete real right, held in one’s own
No closed list property (ius in re propria))
of rights in SA A limited real right (held by non-owner in the property owned by
= no numerus another (ius in re aliena))
clausus Servitude (land) = Entitles holder to use property owned by
another person = constitutes restriction on right of ownership
of owner
o E.g. usufruct
o Personal rights/creditor’s right
Nature and extent of right is necessary in determining what kind of relief is
appropriate.
o Real right = proprietary remedy
o Personal right = delictual/contractual remedy
Registration
o Deeds Reg. Act: S16 and S63(1): Land reg. system permits reg. of real right in
land only, ad precludes reg. of personal rights in land, except in strictly
circumscribed circumstances.
o Requirements:
Right must be intended to bind successors in title
Burden on land Right must amount to a subtraction from
= Co-ownership is dominium (binds land)
affected Ex Parte Geldenhuys (pre-Deed Reg. Act): Mutual will, 2
provisions = Can a personal right be registrable? YES, if the
right is intimately connected to a registrable real right (how
property is divided).
o Discussed what a personal right is = usufruct binds
successors in title, so it is not a personal right
, o Pg.163-164: Personal rights do not bind the successors
in title AND does not bind the land
o Look at correlative obligation of the right on the land
Lorentz v Melle: There should be a PHYSICAL subtraction from
the dominium
Cape Explosives Works: Always had intention to bind
successors in title.
Erlax
Real Right Personal Right
Proprietary remedy Delictual/contractual remedy
Against everyone Against specific individuals
Binds land (dominium) Does not bind land (dominium)
Classification of Rights
o Two-fold test to determine whether a right is real or personal:
Does the right bind successors in title?
Does the right amount to a subtraction from the dominium?
Does the right amount to a diminishment of owner’s rights in respect
of his use of the property?
*Not mutually exclusive
o The mere fact that a personal right is registered does not convert it into a real right =
ancillary to a real right.
o Principle of Publicity
- Rights are enforceable against the world at large, incl. 3rd parties who act bona fide and
in good faith to acquire such rights for value.
- Because the existence of a real right can cause significant prejudice to 3 rd parties, it is
desirable that existence of a real right, its content and the identity of its holder be made
known (i.e. publicized)
- Rebuttable presumption that a person in physical control of a movable is the owner of it.
- Doctrine of Constructive Knowledge: Since real rights in respect of land are registered,
every person is deemed to have knowledge of real rights so registered in the Deeds
Registry. = THEREFORE: Info is publicly available, so one cannot use ignorance of the
existence of a real right as an excuse.
- Right is only announced and publicized when registered
- REGISTRATION DOES NOT CONVERT A PERSONAL RIGHT TO A REAL RIGHT
- Erroneous omission of a previously registered real right change its status nor
extinguished it. (Cape Explosives)
, o Doctrine of Notice
- Registration is not necessary element in creation of a real right
- Law protects holder of an unregistered real right in certain situations
No one may defeat another person’s potential real right for his own
benefit if he KNOWS of the potential real right’s existence, as no one
may derive an advantage from his own bad faith
i.e. No one may defeat another person’s potential real right for her
own benefit if she knows of its existence
- Forces acquirer of real right to give effect to earlier personal rights that would have
given rise to the acquisition of a real right.
- Protects personal right against unlawful act of the acquirer of a real right.
- Applied when: Real right is acquired with the require knowledge
- Doctrine of Constructive Notice:
A prior personal right (which would lead, in turn, to the holder of the personal right
acquiring a thing) must exist against the holder of a real right
The subsequent acquirer of the real right must infringe against upon the pre-existing
personal right
The acquirer of the real right must know of the existence of the prior personal right.
(no need to prove fraud, mere knowledge is sufficient)
THEREFORE: ACTUAL KNOWLEDGE OF THE EXISTENCE OF THE PRIOR PERSONAL RIGHT IS
REQUIRED!
In all cases re: doctrine of notice:
o Personal right = real right upon registration = POTENTIAL REAL
RIGHT!
o Constructive knowledge is not sufficient to activate the doctrine.
o Knowledge should exist at the time of the acquisition of the real
right (i.e. at time of transfer)
Before transfer = prior in tempore (first in time, stronger in
law)
Wahloo Sand v Hambly Parker Trust
Dispute arose because of the creation of reciprocal servitudes by owners of neighbouring
properties, where one property was sold to another before the servitudes could be
registered.
The purchaser refused to consent to the registration of the servitudes, arguing that he had
no knowledge of the agreement in terms of which the servitudes were created.
The Supreme Court of Appeal: Held that lack of knowledge of a servitude created will only
protect the subsequent purchaser after the property has already been registered in his
name.
While the purchaser is not yet the registered owner of the land, the lack of knowledge of
the servitude cannot be a defence against the claim by the owner of the dominant
tenement for specific performance.
Classification & Characteristics of Things – Ch. 2
Elements of a legal thing
o Corporeality
Should not be regarded as an essential characteristic of property
(reality of legal practice) = COMMON characteristic
Section 25 of Constitution reflects this (corp. not needed to
qualify as property)
FNB v SARS: Before you can invoke S25 of Constitution =
o Is it property? (Give property a purposive interp.)
Shoprite Checkers v MEC for Economic Development
o Liquor license deemed to be constitutional property
(under S25)
o Para. 50 = personal self-fulfillment in the holding of
property: advance eco. wealth maximization,
satisfaction of individual preferences, and secure living
a life of dignity in recognition of the dignity of others.
o Independence
o Impersonal
o Appropriability
Susceptible to human control
o Use and value
Economic/sentimental value
CONTEXT IS NB!
Definition case law: Shoprite Checkers; Opperman
Classification according to its:
o Role in commerce (i.e. negotiability)
Res omnium communes, res publicae, res divini iuris
Can be divided into things which are currently owned (res alicuius)
and which are not currently owned (res nullius).
Currently owned may be owned by individuals (res singulorum) or
coroporate bodies (res universitatis)
Abandoned property (res derelictae)
Water, minerals etc.: subject to Water Act…
o Nature
Corporeals + incorporeals
Movable + immovable
Divisable + indivisible
Co-ownership
Single + Composite
S: Exist independently (use & value)
C: Different components that make up a composite thing –
principal and accessory; auxiliary
, Khan v Minister of Law and Order: Motor vehicle = a part of a
car loses independence when attached to car (lose ownership)
o Look at character/identity and function
o Whoever owns the principal thing, owns the whole.
Fungibility v non-fungibility
Individual entities, identical but not individually determined
Consumable v non-consumable
Used up (food, fuel etc.)
Partial wear and tear (economic value must not be lower than
initial value)
Loans, re-use?
Chapter 3 – Rights
Two types of relationships in respect of property (proprietary relationships):
o Possession
o Ownership
Two types of rights:
o Real rights = registered (immovable property)
Right of ownership (most complete real right, held in one’s own
No closed list property (ius in re propria))
of rights in SA A limited real right (held by non-owner in the property owned by
= no numerus another (ius in re aliena))
clausus Servitude (land) = Entitles holder to use property owned by
another person = constitutes restriction on right of ownership
of owner
o E.g. usufruct
o Personal rights/creditor’s right
Nature and extent of right is necessary in determining what kind of relief is
appropriate.
o Real right = proprietary remedy
o Personal right = delictual/contractual remedy
Registration
o Deeds Reg. Act: S16 and S63(1): Land reg. system permits reg. of real right in
land only, ad precludes reg. of personal rights in land, except in strictly
circumscribed circumstances.
o Requirements:
Right must be intended to bind successors in title
Burden on land Right must amount to a subtraction from
= Co-ownership is dominium (binds land)
affected Ex Parte Geldenhuys (pre-Deed Reg. Act): Mutual will, 2
provisions = Can a personal right be registrable? YES, if the
right is intimately connected to a registrable real right (how
property is divided).
o Discussed what a personal right is = usufruct binds
successors in title, so it is not a personal right
, o Pg.163-164: Personal rights do not bind the successors
in title AND does not bind the land
o Look at correlative obligation of the right on the land
Lorentz v Melle: There should be a PHYSICAL subtraction from
the dominium
Cape Explosives Works: Always had intention to bind
successors in title.
Erlax
Real Right Personal Right
Proprietary remedy Delictual/contractual remedy
Against everyone Against specific individuals
Binds land (dominium) Does not bind land (dominium)
Classification of Rights
o Two-fold test to determine whether a right is real or personal:
Does the right bind successors in title?
Does the right amount to a subtraction from the dominium?
Does the right amount to a diminishment of owner’s rights in respect
of his use of the property?
*Not mutually exclusive
o The mere fact that a personal right is registered does not convert it into a real right =
ancillary to a real right.
o Principle of Publicity
- Rights are enforceable against the world at large, incl. 3rd parties who act bona fide and
in good faith to acquire such rights for value.
- Because the existence of a real right can cause significant prejudice to 3 rd parties, it is
desirable that existence of a real right, its content and the identity of its holder be made
known (i.e. publicized)
- Rebuttable presumption that a person in physical control of a movable is the owner of it.
- Doctrine of Constructive Knowledge: Since real rights in respect of land are registered,
every person is deemed to have knowledge of real rights so registered in the Deeds
Registry. = THEREFORE: Info is publicly available, so one cannot use ignorance of the
existence of a real right as an excuse.
- Right is only announced and publicized when registered
- REGISTRATION DOES NOT CONVERT A PERSONAL RIGHT TO A REAL RIGHT
- Erroneous omission of a previously registered real right change its status nor
extinguished it. (Cape Explosives)
, o Doctrine of Notice
- Registration is not necessary element in creation of a real right
- Law protects holder of an unregistered real right in certain situations
No one may defeat another person’s potential real right for his own
benefit if he KNOWS of the potential real right’s existence, as no one
may derive an advantage from his own bad faith
i.e. No one may defeat another person’s potential real right for her
own benefit if she knows of its existence
- Forces acquirer of real right to give effect to earlier personal rights that would have
given rise to the acquisition of a real right.
- Protects personal right against unlawful act of the acquirer of a real right.
- Applied when: Real right is acquired with the require knowledge
- Doctrine of Constructive Notice:
A prior personal right (which would lead, in turn, to the holder of the personal right
acquiring a thing) must exist against the holder of a real right
The subsequent acquirer of the real right must infringe against upon the pre-existing
personal right
The acquirer of the real right must know of the existence of the prior personal right.
(no need to prove fraud, mere knowledge is sufficient)
THEREFORE: ACTUAL KNOWLEDGE OF THE EXISTENCE OF THE PRIOR PERSONAL RIGHT IS
REQUIRED!
In all cases re: doctrine of notice:
o Personal right = real right upon registration = POTENTIAL REAL
RIGHT!
o Constructive knowledge is not sufficient to activate the doctrine.
o Knowledge should exist at the time of the acquisition of the real
right (i.e. at time of transfer)
Before transfer = prior in tempore (first in time, stronger in
law)
Wahloo Sand v Hambly Parker Trust
Dispute arose because of the creation of reciprocal servitudes by owners of neighbouring
properties, where one property was sold to another before the servitudes could be
registered.
The purchaser refused to consent to the registration of the servitudes, arguing that he had
no knowledge of the agreement in terms of which the servitudes were created.
The Supreme Court of Appeal: Held that lack of knowledge of a servitude created will only
protect the subsequent purchaser after the property has already been registered in his
name.
While the purchaser is not yet the registered owner of the land, the lack of knowledge of
the servitude cannot be a defence against the claim by the owner of the dominant
tenement for specific performance.
