Law of Property Lecture Notes 2020 Semester 1 PDF

Preview

Summary

Download Law of Property Lecture Notes 2020 Semester 1 PDF

Description

Property UNESCO Sustainable Development Goals 27/02 Things and Property ‘private beaches’: buying multiple properties with exclusive access to the beach. Servitudes: NOT EXAMINABLE IN THE FIRST SEMESTER •

The holder of the servitude has priority, in principle, as regards the exercise of the particular entitlement covered by the servitude

•

Thus, the servient owner may exercise all the usual rights of ownership, but may not impair the rights of the servitude holder, and hence may not exercise those rights that are inconsistent with the servitude, or grant further servitudes that would infringe on the existing servitude.

•

The servitude holder is entitled to perform all acts necessary for the proper exercise of the servitude.

•

The owner has the burden of providing reasonable access of the property to the holder, which could arise out of a contract, tacit agreement or conduct.

•

Servitudes, if they are registered with the title deed against the property, run with the property, and can either be personal or praedial

•

However, the servitude holder must exercise the servitude so that as little inconvenience is caused to the servient owner, and that the burden on the servient property is not increased beyond the express or implied terms of the servitude.

•

SA law does not have a closed list of real rights in land, however, new types of real rights in land are permitted only with great caution in accordance with the view that land should not be unnecessarily burdened.

•

It was held in Linvestment CC v Hammersley that the court may be required to reinterpret servitudes which have existed for generations in a different setting to render them continuously useful for modern society.

Praedial v Personal servitudes •

1

SA law recognizes 2 kinds of servitudes

•

Praedial servitudes benefit successive owners, whereas personal servitudes do not

•

Praedial servitudes are limited real rights that vest in successive owners of one piece of land (the dominant tenement), which derives a benefit from another piece of land (the servient tenement) that belongs to someone other than the owner of the dominant tenement

•

Personal servitudes are limited real rights in movable and immovable property of another, which vest in a particular person only

Chapter 2: Property and Things Things and property: •

The legal objects at the center of property law are things or property •

•

The terms are not synonymous.

Once one understands what things are protected by property law, one will have a sense of the scope of the South African law of property

•

A definition of a “thing” will therefore allow one to determine what exactly is regulated by the law of property.

Characteristics and definition of “things”: •

The scope of property law is determined by the extent to which legal objects qualify as things

Why? •

It is important to determine what legal objects qualify as things for the purposes of the law of property in order to determine whether a property-law (i.e. proprietary) remedy is available

•

If a thing does not qualify as property in the private-law sense, then no remedy will be available in the law of property

•

However, a much broader concept of property exists in the public-law (i.e. constitutional) realm.

2

The private-law concept of a “thing”: •

A “thing” has the following key characteristics: CAIAVU 1. Corporeality 2. An impersonal nature 3. Independence 4. Appropriability 5. Use 6. Value.

•

The fundamental distinction between a thing and a mere legal object is that a thing nearly always has the above characteristics, while a legal object does not.

1) Corporeality and Incorporeality: •

An object is corporeal if it is tangible (i.e. can be appreciated by the 5 senses, especially sight and touch)

•

However, non-physical types of property (i.e. incorporeal property, or intangible interests in property with a distinct economic value) are becoming increasingly important in the private, commercial and public spheres of life

•

Intangible objects include forms of energy such as heat, light, sound, radioactivity or electricity

•

It is not yet clear whether incorporeal objects qualify as things

•

However, the pragmatic approach of the courts has been to acknowledge incorporeal objects as things on various occasions.

•

Incorporeal objects often consist in a collection of rights

•

If one is asserting one’s rights in respect of an incorporeal, one is effectively claiming to have “rights in rights”, as opposed to “rights in legal objects”

•

Our courts have recognized that a person can have “rights in rights” (see Ex parte Eloff 1953 (1) SA 617 (T))

•

The realities of legal practice demand that the characteristic of corporeality should not be regarded as an essential characteristic of property

• 3

Instead, corporeality should be regarded as a common characteristic.

2) An Impersonal Nature: •

Human beings are legal subjects, not legal objects 1. Thus, human beings are not things for the purposes of the law of property

•

Human body parts are also not negotiable (i.e. cannot be bought and sold) and are not regarded as mere legal objects.

•

South African Law?

http://www.sajbl.org.za/index.php/sajbl/article/view/258/285 •

However, advances in medical science have meant that human body parts have to some extent become commodified (e.g. blood for the purposes of blood transfusions and organs for the purposes of organ transplants)

•

However, such body parts are donated rather than sold, preserving the line between negotiability and non-negotiability (see National Health Act 61 of 2003)

•

Renewable body parts may be dealt with on the open market under certain conditions (e.g. human hair may be sold for the purpose of wigmaking).

http://10and5.com/2013/05/10/the-exchange-organ-donor-foundation/ 3) Independence: •

A thing must have independent legal existence

•

For example, a house does not exist separately and independently from the land upon which it is built (it accedes to the land in terms of established legal principles)

•

Things do not have to be physically independent of their environment •

Juridical independence suffices (i.e. the law may intervene and legally separate something which is in fact physically joined to another thing or things).

•

For example, a single building can be legally divided up into apartments, each of which is a separate legal thing which can be owned by a single owner •

•

See Sectional Titles Act 95 of 1986

Conversely, components of a composite entity lack legal independence until they are physically or juridically individualized.

4

•

For example, a house is normally sold with all its fixtures and fittings •

However, certain fixtures and fittings can be juridically (contractually) excluded (a sale agreement can provide that a house is sold without its chandeliers)

•

However, items that are built in, such as toilets and baths, may usually not be excluded, as removing them would cause damage to the fabric of the building.

4) Appropriability: •

A thing must be susceptible to human control, which means the possibility of enforcing and protecting the right in the thing

•

The sun, the moon and the stars are not capable of being things, as they cannot be controlled by humans (?)

•

Air compressed in a cylinder functions as a thing because it has been brought under human control.

5) Use and Value: •

A thing must have use and value to a person

•

The value may be economic or merely sentimental

•

To determine use and value, the thing must be examined in context

•

Dangerous or unwanted things, such as chemical waste, may also qualify as things, although their value would be negative.

Defining a “thing” •

If something is not a thing, one cannot make use of the property-law remedies in respect of that thing.

•

The property-law (proprietary) remedies are often more powerful and more effective than contractual remedies.

Things and Property •

Property law goes further than simply identifying, protecting and regulating things, which is its narrow private-law function

•

“Property” encompasses a broader range of relations, including not only the legal object to which the law relates, but also the rights to such objects (e.g. rights in respect of water or energy)

5

•

“Property” also includes the constitutional notion of property, which encompasses more than simply legal objects and the rights in respect of such objects.

Rights, Things and Property •

The assets in a person’s estate can be both tangible and immaterial

•

Tangible assets: •

•

One’s car, house, iPhone and furniture

Immaterial assets: •

Copyright (intellectual property right), a right to repayment of a loan (right to performance of contractual obligation), and a damages claim against a wrongdoer (right to performance of delictual obligation).

•

Rights relating to the assets in an estate are known as patrimonial rights

•

Patrimonial rights can relate to both tangible and intangible things

•

Rights to tangible things and rights to intangible things both have patrimonial value.

Patrimonial Assets and Things •

Only the items forming part of a person’s estate which satisfy the key requirements of our definition of a thing (corporeality, impersonal nature, independence, appropriability, use, and value) qualify as things for the purposes of the law of property

•

However, the broader concept “property” would include both things and rights in respect of legal objects, such as claims to performances in contract or delict and intellectual property rights

•

In the law of property, we focus mainly on things and real rights (ownership) and limited real rights (e.g. personal servitude) in respect of things

•

However, reference will occasionally be made to personal rights arising in respect of things.

6

Constitutional concept of property •

Section 25 of the Constitution protects and regulates the right to property.

•

In the constitutional law context, “property” refers to any patrimonial right to be protected or regulated

•

Thus, the question whether a thing must be corporeal in order to qualify as property does not arise in the constitutional context

•

Contractual rights will therefore qualify as property for the purposes of the application of section 25 of the Constitution, where a court is attempting to decide whether there has been an unconstitutional deprivation or expropriation of property

•

Section 25 may even extend to statutory claims against the State regarding certain resources, performances, licenses, permits and quotas, despite the fact that these claims are not necessarily based in contract. *(note that this may mean the application of Administrative Law)

•

The Constitution does not contain a definition of “property” •

•

It merely provides that “property” does not refer only to land

Accordingly, the courts will be required to provide clarity on what the term “property” means in the context of section 25

•

The Constitutional Court is inclined to interpret “property” generously, while taking a stricter view when considering possible limitations on the right.

The Constitution, Movables and Incorporeals •

The Constitutional Court has confirmed that movable property and livestock constitute property for the purposes of section 25

•

Various academic commentators submit that incorporeal property such as rights to the legal objects of others and claims to performance by others should be regarded as property for the purpose of section 25.

7

Classification of Things according to negotiability: •

The classification of things is important because how a thing is classified can determine the choice of rules or principles as regards the acquisition, protection and enforcement of rights in things.

•

•

A thing can be classified according to: •

Its role in commerce (i.e. its negotiability)

•

Its nature.

The same thing can be classified by means of various criteria.

Negotiability •

If a thing is classified according to its negotiability, the key question is whether the thing can be privately owned or not

•

There is a distinction between res in commercio (negotiable things) and res extra commercium (things outside of commerce).

•

Negotiable things can be divided into things which are currently owned (res alicuius) and things which are not currently owned (res nullius)

•

Things which are currently owned may be owned by individuals (res singulorum) or corporate bodies (res universitatis)

•

Res nullius (something which has never been owned and is owned by no one) and res derelictae (something which was once owned but has now been abandoned).

Res nullius •

Wild animals would be regarded as res nullius. •

However, they can be owned if they are brought under human control (i.e. if a hunter were to catch and tame a wild animal)

•

Under the common law, if a wild animal escapes from the control of its owners, it automatically reverts to being res nullius

•

Change in the common-law position: •

Game Theft Act 105 of 1991.

•

The Act states that if an unauthorised hunter kills or captures an animal on a property where game is kept for hunting or commercial purposes, the animal remains the property of the land owner until a certificate is issued ito the Act, or it remains

8

the property of the land owner upon whose land the animal was caught. Res extra commercium •

These can be divided into: •

Res omnium communes (things common to all) •

For example: the sea, the air we breathe and running water

•

Res publicae (public things) •

•

For example: public roads, rivers and harbours

Res divini iuris (religious things) •

For example: graves, graveyards and tombstones).

Minerals and Petroleum Resources •

Minerals and petroleum resources are regulated by the Minerals and Petroleum Resources Development Act 28 of 2002 (“the MPRDA”)

•

Such resources are now held in custodianship by the state, and are therefore arguably res publicae.

Use of these resources is now

regulated by the MPRDA •

Water is under the stewardship of the State in terms of the National Water Act 36 of 1998. Thus, water may also be regarded as res publicae.

Classification of things according to nature: Corporeals and Incorporeals •

These are classed according to the legal convictions of the community

•

A corporeal is tangible and can be perceived by the senses

•

An incorporeal is “an abstract concept with no physical existence, but which has pecuniary value

•

Incorporeals include forms of energy (e.g. heat, light and sound) and rights (e.g. a usufruct or lease).

•

Distinction is important bc it affects the type of control at the heart of the processes acknowledged by property law.

9

Movables and Immovables •

Things are movable when they can be moved from one place to another without being damaged or losing their identity

•

Immovable things cannot be moved in this way

•

Movables include furniture, vehicles, money and clothing

•

Land is the most typical example of an immovable

•

Anything that permanently attaches to land is regarded as an immovable •

For

example:

buildings,

installations,

vegetation

and

unharvested crops (corporeal things). •

Distinction is important bc of how it is alienated/acquired.

Incorporeals: Movable or Immovable? •

Incorporeals can be classified either as movables or immovables, on the basis of whether the object of the right in question is movable or immovable (where the right functions as the object of further rights •

For example: a usufruct which is the object of a real security right

•

Personal rights are always movable, regardless of whether the underlying asset could be classified as movable or immovable •

For example: a usufruct over the contents of a house is always movable.

•

Some incorporeals are always immovable – e.g. where their object is immovable, such as the use or habitation of certain immovable property (usus and habitatio)

•

A share in a company is regarded as movable property, as is a member’s interest in a close corporation

•

The goodwill of a company and intellectual property rights (e.g. patents, designs and trademarks) are movable property.

Mortgage Bonds: Movable or Immovable? •

Mortgage bonds have sometimes been classified as movables and sometimes as immovables

10

•

The determining factor for classification is the purpose for which the classification is undertaken

•

Thus, a mortgage bond can either be regarded as movable or immovable property depending on whether one is classifying the bond for the purpose of establishing the liability of the debtor (personal obligation) or the real security rights held by the creditor (real security)

•

In the former case, the bond would be regarded as movable property, while in the latter it would be regarded as immovable property.

Single and Composite Things (look at textbook: 35) •

Single and composite things?

•

Single things are individual things that exist independently and comprise an entity which has use and value

•

Sometimes individual things are grouped and dealt with as an economic unit (e.g. a flock or sheep or a collection of stamps)

•

However, a collection is not a composite thing, although individual items in th...