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Property LawTest 3 NotesCase Summaries_______________________Khan v Minister of Law and OrderDecision in Khan provides a good example of application of the principles regarding the classification of things according to their nature, into principal, accessory and auxillary things. Khan, the applicant...

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Property Law Test 3 Notes Case Summaries _______________________

Khan v Minister of Law and Order Decision in Khan provides a good example of application of the principles regarding the classification of things according to their nature, into principal, accessory and auxillary things. Khan, the applicant, was dispossessed of his vehicle by the police. Court proceedings emanated from his attempt to have vehicle returned to him. Vehicle was built up from different wrecks, and the rear end was identified as part of a stolen vehicle. It was undisputed that the engine and inner front belonged to applicant. There were other components, some of which may have been taken from the stolen vehicle and built into the vehicle of Mr Khan, while others may have originated from a third source. Accessories follow the principal thing. Important for the court to establish which part of the built-up vehicle formed the principal thing, and which parts were merely accessory to it. The applicant could have the vehicle returned if his part was determined to be the principal part. Court held: Where one movable is joined to another in a manner as to form an entity, the owner of the principal thing becomes the owner also of the thing joined to it. Court indicated that deciding which part is the principal is generally a matter of common sense. Guidelines which may aid the decision refer to the value, bulk or size of the thing. In this particular case, the court found that the thing that gave the composite whole its ‘character, form and function’ would decisively be the principal thing. Court found that the stolen rear end of the built up vehicle gave it its character, form and function. Khan could not recover the vehicle because the part that originally belonged to him had acceded to the principal part (the stolen part). Consideration that weighed heavily on the decision was the fact that the vehicle looked more like that used to rebuild the rear end. The fact that the internal components (the engine and the inside front panels) were from the vehicle of the applicant, were not as weighty as the overall appearance of the vehicle). Various tests are employed to determine the principal object: the value or bulk of the objects; whether one component can exist without the other; which thing merely adorns the other; and which thing gives the final entity its identity, form, name or function. This case exhibits a simple determination of the principal thing in a composite, ultimately applying common sense. It suggests that the principal thing in a car is the chassis. FACTS The applicant had his BMW seized by a policeman. He now applies for an order to reclaim it. It was found that almost the entire body of the car is that of a stolen 1988 BMW. The engine and inner front portion of the car are from a 1985 BMW legitimately bought by the applicant. LEGAL QUESTION How does one determine which is the principal thing after accession to form a composite thing? REASONING Where one movable is joined to another so as to form an entity, the owner of the principal thing becomes the owner also of the thing joined to it. It is therefore imperative in this case to determine what the principal thing is. Various tests have been used over the years: the bulk test; the character, form and function test; and the pure value test. But these things are really a matter of common sense; the tests are of use primarily in cases of doubt. ANSWER TO LEGAL QUESTION The principal thing is the one which gives the composite thing its identity; or its character, form and function. The ultimate car is therefore the stolen 1988 BMW and the applicant accordingly has no right to reclaim it.

Ex Parte Geldenhuys Facts: - Joint will bequeathed land to the testators' children in equal shares, subject to 2 conditions: 1) Land is subdivided by lottery, when eldest child reaches majority 2) Child who gets the land with homestead must pay £200 - Surviving testator asks court to order Deeds Registry to register the two conditions Issue: - What constitutes a real right? - Are conditions 1 & 2 real rights? - Can conditions 1 & 2 be registered? Law: - Real rights must: 1) Constitute a burden on the servient land 2) Result in a subtraction from dominium if the land against which it is registered - Only real rights can be registered - No law preventing the registration of particular types of real rights Application: - Condition 1: Burden on the land, results in subtraction from dominium, therefore a real right, therefore can be registered - Condition 2: Personal obligation, does not result in subtraction from dominium, therefore a personal right, cannot be registered (in this case since it is intimately connected to real right, can be registered). Conclusion: Condition 1 registered, condition 2 exceptional registration. o A testator bequeaths a farm to his children. The will contains detailed provisions as to how the farm should be divided, that is, by the drawing up of lots. It further provides that the child who draws the part that includes the farmhouse has to pay an amount of money to his siblings. o The subtraction from the dominium test is articulated well in this case which concerned a dispute about the registrability of rights created in a will. The will determined that the land in the estate would be divided in equal parts among the children of the deceased once the eldest came of age. When this happened, the portion to be allocated to each was to be determined by the children drawing lots. This contained an additional provision to the effect that the child who drew the portion that included the homestead, would be obliged to pay an amount of money to the other children. The registrar of deeds refused to register these conditions, arguing that they did not establish real rights in land because no diminution of ownership entitlements resulted. To determine which rights are registratble the court composed the following formula: one has to look so much not to the right, but to the correlative obligation. If that obligation is a burden upon the land, a subtraction from the dominium, the corresponding right is real and registrable; if it is not such an

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obligation, but merely an obligation binding on some person or other, the corresponding right is a personal right, or a right in personam, and it cannot as a rule be registered. Found provision dealing with the time and manner in which the land had to be divided amounted to a subtraction from the dominium. The stipulation restricted the common law right of co-owners to claim division of the land held jointly at any time they chose and divide it as they choose. This restriction adhered to and affected the entitlements of ownership of undivided co-ownership shares that they had to be regarded as a real burden upon that co-ownership. In response to a question as to why the division could not proceed immediately the court found that the identity of the person who would be obliged to pay the money was unclear (no certainty that the eldest child would reach majority first). The other provision, relating to the payment of the determined amount of money, was found not to constitute a burden on the land because the obligation to pay the money was on a specific person rather than on the land and once the obligation had been performed it would be satisfied (character of a personal right). Even though this right did not amount to a real right the court held that to give proper effect to the will it had to be registered on the basis that the right was so intimately connected with the other registrable rights. The act of registering a personal obligation does not change its character. Registration permits the person obligation to be publicised but does not make it automatically binding on third parties. A provision in a will requiring a payment of a sum of money by one co-heir to the others, following a distribution of the property concerned by drawing up of lots was held to be personal but nevertheless registrable so as to give effect properly to the intention of the testator. In terms of s 63 of the Deeds Registries Act the Registrar of Deeds can allow registration of person rights or conditions if such a right or condition is complementary or ancillary to a registrable right contained in the deed. The rationale underpinning registration was that the personal right was so intimately connected to a registrable (real) right that failure to bring the obligation to the attention of the possible successors in title, would result in an incorrect representation, and an imperfect picture of the testamentary direction.

This case provides the locus classicus for the ‘subtraction from dominium’ test: one must look not at the right itself but at the correlative obligation, and determine whether it binds successors in title in such a way that it can be said to subtract from the land’s dominium. The ratio confirms that a personal right can be registrable when it is inextricably linked to one or more real rights. This principle was later enshrined in s 63(1) of the Deeds Registries Act. The judgment is also useful in that it suggests that neither the paying of money nor conditional obligations can easily be considered real rights. FACTS A testatrix died, survived by her husband and five minor children. In terms of the joint will of the married couple, as soon as the eldest child reaches majority the survivor must divide up their farmland in equal portions by the drawing of lots and distribute it among the children. The child who gets the portion comprising the homestead of the farm shall pay £200 to the other children. The applicant (the surviving father) applied for an order inter alia instructing the Registrar of Deeds to register transfer of the undivided shares of the land to the children subject to these conditions.

LEGAL QUESTION Can a personal right be registrable by virtue of its close relationship with a real right? REASONING The question here is whether the conditions of the will can be considered real rights, i.e. ones which burden the land, and constitute a deduction from the dominium. This was the explanation given in Hollins v Registrar of Deeds and is still accurate for the purposes of the present case. The key is that the correlative obligation which arises from a real right must survive a transfer of ownership and continue to burden the land; it must be an obligation binding not just on one person or other but on anyone. It seems that the provisions of the will ‘so directly affect and adhere to the ownership of the undivided shares’ that they need to be regarded as real. As for the difficult issue of the paying of the £200 by the owner of the homestead, it must be held that this is a personal right. This is because the paying of money cannot easily be held to be a real right, and the obligation is uncertain and conditional upon the outcome of the drawing of lots. It is therefore not a registrable right per se. However, it is so closely related to a right which is registrable that it must also be regarded as such. If not, it would give a misleading representation of testamentary direction, especially to strangers who wished to purchase one of the undivided shares. Answer to legal question Yes, a personal right can be registrable if it is inextricably linked to one or more real rights. The applicant’s prayer for the registering of the entire clause in the will is granted.

Schwedhelm v Hauman Facts: - Hauman owns a servitude over Schwedhelm's property to draw water - The water use servitude is registered - Obligation to supply and maintain infrastructure for drawing water is also registered Issue: - Is the provision and maintenance of infrastructure for drawing water a servitude? - If a right is registered does this make it a real right? Law: - A servitude cannot cast upon the owner of the servient tenement, an obligation to actively do something - The only obligation a servitude creates is to allow the owner of dominant land to do something or forbid the owner of servient land from doing something - The mere fact that a right has once been registered does not change the nature of the right - When a property is sold, the purchaser is only bound by servitudes of property and not personal obligations of the seller. Application: - Providing and maintaining infrastructure is an obligation to actively do something, therefore it cannot constitute a servitude - This obligation is not for allowing dominant owner to do something or forbidding servient owner from doing something therefore it cannot constitute a servitude - Provision and maintenance clause, is registered, but not necessarily a real right, since registration of a right does not change its nature - Schwedhelm is not obliged by personal obligations of the previous owner, and provision and maintenance of infrastructure was such an obligation. Conclusion: - Provision and maintenance is not enforceable on Schwedhelm or his successors in title. o Servitudes are passive in character which means that traditionally a servitude cannot impose an active or positive duty (a duty to do something) on the owner of servient land (Passivity Principle: a servitude does not oblige an owner to render a performance. Instead it requires the servient owner either to allow the holder of the servitude to do something with or on the servient tenement or to refrain from doing something with the land himself. The obligation to render a performance is the characteristic of a personal right. In this case the rule of passivity was upheld. A registered servitude entitled the plaintiff to draw water from a dam on the defendant’s land. It also compelled the defendant (the servient owner) to provide and suitably maintain any windmill, pipes etc. necessary to convey the water over the two properties to points determined by the plaintiff. Although the court found the right to draw water to amount to a valid servitude, it was not willing to regard the obligation on the defendant to perform positive duties in respect of that servitude also as a servitude. The positive obligation was personal in nature. o In order to bind a successor in title to the obligation, the transferor would have to ensure that the purchaser agreed to undertake the obligation.

o The court held that the obligation was personal to the original owners and successors in title would only be bound if they expressly agreed. o The Registrar of Deeds may register certain (personal) rights including the right to oblige a person to perform a positive duty if he or she considers the right or condition to be ‘complementary or otherwise ancillary’ to a registrable condition. The result is that only the party who initially undertakes to perform these positive duties will be contractually bound to do so and that the positive obligation will not devolve as part of the servitude on the successive owners of the servient land unless he/she expressly assumes these obligations and if he/she buys the land with full knowledge of the content of the servitude. In addition to its contention that a servitude cannot furnish a positive obligation on the servient owner, this judgment is important because, like Capex v Denel, it argues that errors in the Deeds Registry imply very little about the legal status of the relevant rights (specifically, it states that a right is not made real merely by its registration). Finally, the judgment makes it clear that personal rights can be transferred to successors in title by (express or implied) agreement; in this they can behave in practice somewhat like real rights. FACTS The excipient (defendant) came to own a portion of farmland across which the respondent (plaintiff) has a right to draw water. The plaintiff claimed that the defendant was under an additional obligation to provide and maintain the windmill and piping necessary for the plaintiff to exercise his right, and was suing on the grounds that the defendant had failed to meet this obligation. The defendant had excepted to this claim because it has no legal basis; it constitutes an unlawful attempt to impose a praedial servitude. LEGAL QUESTION Can a servitude impose a positive obligation on the servient owner? REASONING It is common cause that the servitude of aquaehaustusis valid. But the additional maintenance requirement cannot be a praedial servitude because a well-known rule of Roman law makes clear that no servitude can cast upon the owner of the servient tenement a positive duty such as this one. There remains the important fact that the Registrar of Deeds registered the servitude in its entirety. But it is quite possible that the Registrar of Deeds was simply wrong to register this right. Since the maintenance right does not appear to satisfy the exception identified in Ex parte Geldenhuys, and its registration contradicts the fundamental principle of law that no personal rights are registrable, the fact that it was granted by the Registrar of Deeds is ignored. The respondent countered that the intention of the parties created a genuine servitude. But the intention of the parties cannot override the fundamental principles of law any more than can the Registrar of Deeds’ intentions. This is independent of the question of whether a personal obligation could have been imposed upon Els (the owner before the defendant) to compel him to provide maintenance. In fact, such an obligation was imposed upon Els, and a reading of the deed of transfer between Els and the defendant suggests that the defendant did indeed undertake to fulfill the maintenance obligation. While this is quite different to recognition of a real right to maintenance, and could be rebutted in the later court proceedings, it is sufficient to fault the present exception. Answer to legal question No, a servitude cannot impose a positive obligation on the servient owner. The exception is dismissed with costs.

Nel NO v Commissioner for Inland Revenue (Appellate) Facts: - Four properties were transferred to the son of a testator in terms of his will - Transfer was conditional on usufruct of son paying a monthly amount to his mother - This right was registered in Deeds Registry Issues: - Can this condition be registered? - Does the condition constitute real right or a personal right? - Is the condition binding on successors in title? Law: - Ex parte Geldenhuys shows that the registration of a right does not convert it to a right in rem - The land owner creating a right must have intention for it bind successors in title 1) intention must be explicit 2) cannot assume knowledge of conveyancing technicalities on the part of the creator of the right Application: - The usurfruct was registered, but this does not necessarily make it a real right - Testator explicitly obliged son to pay mother, not burden upon land and no intention to create a real right Conclusion: Personal right. • •

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A testator bequeaths land to his son and links it to an obligation placed on the son to pay the surviving spouse of the testator an amount of money, either once-off, or at regular intervals. The registrability of a right to receive payment of money arose in the context of a determination of the dutiable value of an estate. A number of properties had been donated and transferred to the son of the donor, subject to certain conditions. Among others, the conditions stipulated that the properties were donated subject to a usufruct in favour of the donor, and that, after his death, his son would be obliged to pay a regular monthly sum of money to his mother. This obligation was made a condition of transfer and accordingly registered against the title deeds of the properties. In determining the value of the donor’s estate for purposes of estate duty later, it was argued that the registered right amounted to a usufructuary or other like interest which should be deducted from the total value of the property in the estate (this argument was rejected in the court a quo). AD left open the Q whether a burden imposing an obligation to pay money, that will bind a successor in title either for an ascertainable time or indefinitely, would bregistrable against the title of the land---was decided that the obligation to pay the annuity was persona...