PVL2601 PROPERTY SUMMARY. MUST HAVE!

PROPERTY SUMMARY Owner’s entitlements: 1. Use 2. Control 3. Encumber – grant someone else rights with regard to the property 4. Fruits 5. Consume 6. Alienate 7. Vindicate – claim back from a 3rd party with the rei vindicatio Characteristics of a thing: a) Corporeal: must be observed by the senses b) External to humans c) Independent d) Subject to judicial control – not the moon e) Useful and valuable to humans – can also have sentimental value Negotiable and non-negotiable things: Negotiable things in law include: 1. Things owned by a person or things in a deceased estate – res aliculius 2. Things capable of being owned by aren’t owned at the moment – res nullis 3. Things that are no longer in the physical control of the owner and the owner has lost his intention to be owner – res derelictae 4. Things that are lost and no longer in the physical control of the owner but the owner hasn’t lost the intention to be owner – res deperditae Non-negotiable things: 1. Natural resources falling outside commerce and which are available to all people = air 2. Things owned by the state and used for the publics benefit. Singular and composite things: Singular: exists independently without being composed of particular components – brick Composite: are compositions of different components Elements of a composite thing: a) Principle thing: which exists independently and can be the object of a real right (car) b) Accessory thing: things which can exists independently of the principle thing but which is mixed with the principle thing to such an extent that its lost its independence – brick built into a house c) Auxiliary thing: exists separate and independently of the principle thing but because of its economic value or use, its no longer regarded as an independent thing – key d) Fruits: are produced by the principle thing without the principle thing being consumed or destroyed 2 Movable and immovable things: Immovable’s are units of land and everything permanently attached – all things, which can’t be classified, as immovable’s will be movables. Differences: Movable and immovable things o Transfer of ownership of movables is effected by delivery, and of immovable’s by registration in the deeds registry o The right to alienate or encumber the estate of a minor is affected as follows: Permission of the High Court is required for the alienation or encumbrance of a minor's immovable assets worth more than R100 000-00 o In the execution of a judgment debt and in the case of insolvency, the debtor's movable assets are sold before the immovable’s, to secure payment of the judgment debt. o In criminal law theft can be committed only in respect of movables, while arson can only be committed in relation to immovables. o Real security is affected by means of a pledge in the case of movables and by means of a mortgage in the case of immovable things. Fungible and non-fungible things: Fungible: belongs to a certain class of things and can be replaced by similar things – light bulb Non-fungible: has an individual characteristic that makes it irreplaceable – original painting Consumable and non-consumable: Consumable: depleted in value or consumed by normal use – wine Non-consumable: maintained even if normal wear and tear occurs through use – house Divisible and indivisible: Divisible: can be divided into smaller components while keeping its nature and function – subdividing land Indivisible: can’t be divided without changing the value, nature or function – chair CREDITORS vs. REAL RIGHTS Classical theory: Look at the difference between a creditors and real right: Real right: right of a person in a thing Creditors right: right of a person against another person Personalist theory: Look at the ways the rights are to be enforced: Real rights: are absolute and can be enforced against the whole world Creditor’s rights: are relative and can only be enforced against a specific person only. CLS cc © PROPERTY SUMMARY - 2016 3 Critical Law Studies CC © Personal and real rights Object The object of a real right is a corporeal thing whereas the object of a personal right is performance. Absoluteness Real rights are absolute in principle: the holder of the right can vindicate his/her thing (subject to certain exceptions) from whomever is in control of the thing; while personal rights 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 (contract or delict). Preference In the case of insolvency, a real right enjoys preference over other rights. Moreover, the maxim, first in time is stronger in law (prior in tempore) is applied in the case of two or more competing real rights. Apart from a few exceptions, this principle does not apply to personal rights. Publicity The establishment of real rights requires some form of publicity. The reason for this lies in the nature of real rights. Since these rights have to be respected by the world at large, it is imperative that there should be some form of publicity informing outsiders of the existence, transfer or extinction of the real right. The establishment of personal rights does not require publicity. Subtraction from dominium test: ``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 on some person or other, the corresponding right is a personal right, or right in personam, and it cannot as a rule be registered.'' Ex Parte Geldenhuis: Facts: husband and wife left their land to their children in a will. The land would go to them as co-owners when the eldest child reached majority. The land would then be divided into portions by drawing lots. The child who got the land with the house on had to pay the others compensation. o The time and manner of sub-division and usually co-owners are free to decide when to sub-divide – if the obligation is on the land = subtraction from dominium and it can be registered. Therefore subsequent owners are also bound. REAL RIGHT AND MUST BE REGISTERED o The child with the house has to compensate the others – if the burden is on a specific person in his personal capacity = creditors right and it can’t be registered – subsequent owners wont be bound.