Notes for LAPR7311 LU 1 - Summary of the Law of Property module. Extremely helpful with examples of difficult PDF

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Notes for LAPRLaw of Property Learning Unit 1: Introduction, Terminology and Basic Concepts 1 Sources of Property LawSources of traditional law of things before 1994:  Roman-Dutch law = writings of R-D lawyers (Grotius, Voet etc)  Legislation = statutes such as Sectional titles Act  Case law Post...

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Notes for LAPR7311 Law of Property

1. Learning Unit 1: Introduction, Terminology and Basic Concepts 1.1

Sources of Property Law Sources of traditional law of things before 1994:  Roman-Dutch law = writings of R-D lawyers (Grotius, Voet etc)  Legislation = statutes such as Sectional titles Act  Case law Post 1994 sources of law of things  Fundamental rights in Constitution has meant old discriminatory property laws are invalid`  S39(2) means any common law and customary law must be applied and interpreted with due regard to spirit and objects of Constitution

1.2 Terminology  Person = legal subject who can acquire and exercise rights and obligations in law. Can be a natural person or juristic person  Object = anything which regard to which a person can acquire and hold rights  Property = everything which can form part of a person’s estate, including corporeal things and incorporeal rights and interests  Thing = specific category of property, which is defined with reference to its characteristics : a corporeal object outside the human body and an independent object capable of being subjected to legal sovereignty by a legal subject for whom it has use and value  Right = a legally recognised and valid claim by a subject to a certain object. Not all relations between a person and an object are recognised and protected by law  Property right = any legally recognised claim to or interest in property  Lawful claim or action = a claim or action is lawful when it is acknowledged and protected by existing legal principles, unlawful when it is in conflict with or not acknowledged by law  Remedy = a legal procedure provided by the legal system to protect a right against infringement or to control the effects of an unlawful act and situation

1.3

Things as Legal Objects 1

A thing can be defined, in terms of it characteristics, as a corporeal or tangible object external to persons and which is, as an independent entity, subject to juridicial control by a legal subject to whom it is useful and of value 1.3.1

1.3.2

Characteristics of a thing i. Corporeality

ii.

External to humans

iii.

Independence

iv.

Subject to juridicial control

v.

Useful and valuable to humans

Classification of things 2

1.4

i.

Negotiable and non-negotiable things

ii.

Singular and composite things

iii.

Movable and immovable things

iv.

Fungible and non-fungible things

v.

Consumable and non-consumable things

vi.

Divisible and non-divisible things

Property rights, real rights and subjective rights 3

1.4.1

Subjective rights     

1.4.2

Real rights 



1.5

A legal subject is a natural OR juristic person who can acquire right and duties in terms of a legal relationship. A legal object is anything in respect of which a legal subject can acquire and hold a right. A legal object is usually classified according to its nature. A thing is, for instance, a legal object, and the most important legal object for purposes of the Law of Property. Types of subjective rights: o A real right is a subjective right that has a thing as its object. o A personal right, on the other hand, is a subjective right that has performance as its object (think, inter alia, contract or delict). o A personality right is a subjective right that has an aspect of personality (such as your dignity or privacy) as its object. o An immaterial property right is a subjective right that has a type of immaterial property (and this includes subjective rights) as its object

Real rights o are either ownership or limited real rights. o we say that ownership is the most complete real right o is the only real right held in one's own property (ius in re propria). A limited real right o is a real right held by a non-owner in the property owned by another and is thus limited (ius in re aliena). o There are various categories of limited real rights (such as servitudes and real rights of security).  Real rights should be distinguished from personal rights. o Personal rights are governed by the Law of Obligations (i.e. Law of Contract and Law of Delict). o Personal rights are established and protected in different ways. o Where rights are created in terms of a contract or a will, it is sometimes difficult to distinguish between a real right and a personal right. o In this context it is important to determine whether the right is a limited real right (which can be registered) or a personal right (which, in principle, is not registrable) – NB Subtraction from Dominium test

Where does property law fit into the legal system? 

Common law (R-D law) o

Apply in accordance with Constitution 4





Statutory law o

Much new legislation to rectify old apartheid laws

o

Prevention of Illegal Eviction from Unlawful Occupation of Land Act, Prevention of Illegal Squatting Act etc

Case law o



Customary law o



Much case law prior to 1994 now inappropriate

Holders of customary law land rights were traditionally men and this might come into conflict with principles in Constitution

Constitution o

Various provisions in the Constitution

o

S39(2), chapter 2, s8(1), s8(3)

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