Property law exam notes PDF

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Property law exam notesLecture 2(2)Rights and thingsRights, things, and property Tangible assets: one’s car, house, iPhone and, furniture. Immaterial assets: copyright (intellectual property right), a right to repayment of a loan (right to perform contractual obligation), and damages claim against a...

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Property law exam notes Lecture 2(2) Rights and things Rights, things, and property -

Tangible assets: one’s car, house, iPhone and, furniture.

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Immaterial assets: copyright (intellectual property right), a right to repayment of a loan (right to perform contractual obligation), and damages claim against a wrongdoer (right to performance of delictual obligation)

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Look at the nature of the thing in question.

Patrimonial rights -

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

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Patrimonial rights can relate to both tangible and intangible things.

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

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Only 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.

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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.

Patrimonial assets and things. -

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

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The picture has a house, tree, and plant. The house is sold as means of transfer at the deeds registry. Servitudes – particular rights a person has to this particular thing.

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

Constitutional concept of property -

Section 25 protects and regulates the right to property.

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In the constitutional context, property refers to any patrimonial right to be protected or regulated.

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

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Contractual rights will therefore qualify as property for the purpose 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.

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Section 25 may even extend to statutory claims against the State regarding certain resources, performances, licences, permits and quotas, despite the fact that these claims are not necessarily based in contract.

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The Constitution does not contain a definition of ‘property.’

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The court will then be required to provide clarity on what the term ‘property’ means in the context of section 25.

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CC is inclined to interpret ‘property’ generously, while taking stricter view considering possible limitations on the right.

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Movable property and livestock constitute property for the purposes of section 25.

Lecture 2(3). Classification of things. Classification of things part 1 -

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

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A thing can be classified according to: 

Its role in commerce (its negotiability)

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Its nature

Res- simply means things. Res in comemrcio (commercial, negotiability capable of commercial control) res extra commercium (not capable of being commercialised).

Negotiability

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

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

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

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

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- 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.

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

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

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Change in the common law- position- Game theft Act 105 of 1991.

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).

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Res publicae (public things for example public roads, rivers, and harbours).

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Res divini iuris (religious things for example graveyards)

Minerals and petroleum resources -

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

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

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Water is also under the stewardship of the state, hence res publicae.

Section title plan -owner owns a unit and an undivided share in the common property.

Fungible and non-fungible things -

Fungible things are separate individual entities that are identical to one another. (For example, several cans of soft drink or several bars of chocolate).

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Because these items are identical, they are not individually determined (unique) and are therefore interchangeable for some purposes.

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While they can deal with individually, they are usually dealt with for trading purposes by reference to their weight, number, or size.

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Non fungibles are individually determined (they are unique, have distinctive individual qualities, or some specified characteristic which makes them different from other things), interchangeability is not permitted.

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A particular painting in an example of a thing which is non fungible by nature.

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Some things can be designated as non-fungible. For example, where a merchant has ordered for a particular quality of potato and will not accept a substitute.

Consumables and non-consumables -

A consumable is a thing which is destined to be used up (consumed by use). For example, food and fuel.

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A non-consumable is a thing which will not be substantially changed or reduced through use of the thing. For example, land and artwork.

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The distinction can sometimes be difficult to make (for example clothing, machinery, vehicles).

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The test is whether over time the thing will suffer a reduction in value over time.

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Machinery and vehicles are generally classed as consumables.

Divisible and non-divisible things -

A thing is divisible when it can be separated into parts, each of which has the same nature and function as the whole before it was divided. The total value of the whole of the separated parts should not be less than the value of the whole.

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Indivisible things cannot be divided in this way.

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The above concept refers to legal, rather than physical, divisibility.

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Thus, although it may be possible to divide a thing physically, it may still not be legally divisible because the various separate parts do not have the same nature and function as the whole entity from which the various parts were severed.

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For example, a car or a bicycle is not legally divisible (a part of a motor car such as a door or steering wheel obviously cannot serve the function of providing transport notwithstanding the fact it can physically be severed from the motor car).

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However, land and wine in a barrel are both legally divisible.

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The distinction between divisible and non-divisible things is important in the context of co-ownership (the termination of o-ownership).

Lecture 2(3) Classification of things 2

Classification according to the nature of things. -

A car is a movable, corporeal (maybe fungible), composite thing and is arguably made of component parts (tires/ windows).

Corporeal and incorporeal -

These are classed according to the legal convictions of the community.

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A corporeal is tangible and be perceived by the senses.

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

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Incorporeal include form of energy (heat, light, and sound).

Movables and immovables -

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

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Immovable things cannot be moved in this way.

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Movables include furniture, vehicles, money, and clothing.

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Land is the most typical example of an immovable.

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Anything that permanently attaches to land is regarded as an immovable, for example buildings, installations, vegetation, and unharvested crops.

Incorporeal: movable or immovable? -

Incorporeal can be classified either as movable or immovable, 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).

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

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

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

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

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

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

Mortgage bonds: movable and immovable? -

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

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

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Thus, a mortgage 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.)

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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 -

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

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

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However, a collection is not a composite thing, although individual items in the collection may be single or composite things.

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Composite things consist of different components joined together to form a single entity in law, such as sectional title unit, a house, or a bicycle.

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A composite thing consists of a principal thing, accessories, and auxiliaries (appurtenances).

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For example, a house is a principal thing, a chandelier fitted to the living room ceiling is an accessory, and the keys to the house are an auxiliary item (they do not necessarily have value on their own unless attached to the principle).

Case law for classification of things -

Khan v Minister of law and order (the court reiterated that the rule that 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.)

Lecture 5 The law of the sea

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The United Nations Conventions on the law of the sea (UNCLOS) took place between 1973 and 1982.

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It is an international agreement that defines the limits of the territorial seas of the nations and the areas in which they exploit marine resources.

Lecture 6 A slice of servitudes

Servitudes: Access servitude

Right: the holder of the servitude has priority, in principle, as regards the exercise of the “entitlement” covered by the servitude.

Duty: Thus, the servient owner may exercise all the usual rights of the ownership but may not impair the rights of the servitude holder, and hence may not exercise those rights that are inconsistent with the servitude with the servitude or grant further servitudes that would infringe on the existing servitude. Duty: the servitude holder is entitled to perform all acts necessary for the proper exercise of the servitude.

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

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South African law does not have a closed list of real rights in land.

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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.

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In Linvestment CC v Hammersley 2008 (3) SA 283 (3) it was held 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 and personal servitudes -

SA law recognises these two kinds of servitudes.

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Praedial servitudes benefit successive owners, whereas personal servitudes do not.

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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.

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

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Whether a servitude should be classified as a personal or a praedial servitude depends on whether the servitude benefits a particular piece of land or a particular person.

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If the benefit favours land, then regardless of the identity of the owner at any given point, successive owners will benefit from the interest in the servient land.

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If the benefit favours a particular person, then, at best, the benefit exists for the lifetime of that person.

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Both praedial and personal servitudes are limited real rights as they burden ownership.

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A personal servitude is therefore not a personal right.

Praedial: runs with the land. Personal: granted to person in their individual capacity- usus, habitatio, usufruct.

Subtraction from dominium test -

Ex Parte Geldenhuys

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Concerned a dispute of 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 one the eldest came of age.

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Lorenzt v Melle

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Pearly Beach Trust v Registrar of Deeds

Lecture 7 Topic 5(1) Rights and property. -

Define: real right, limited real right, personal right.

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There are 2 types of relationships in respect of property (proprietary relationships):

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- possession

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- rights

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The law acknowledges different kinds of rights in respect of property: 

The main distinction

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is between real rights in property and personal rights (creditor’s rights) in property.

Importance of distinction? -

The way rights are acquired, exercises and protected depends on whether the rights in question are real or personal.

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Some rights in respect of land can be registered in the Deeds Registry as real rights, while others may not be registrable.

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Not all rights in respect of property will automatically be typified as real rights.

Relationships in respect of property -

Proprietary relationships = rights = possession= real rights and personal rights (creditors rights).

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SA law acknowledges a variety of rights in respect of property.

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A real right an either be: the right of ownership or a limited real right.

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Ownership is the most complete real right and is the only real right held in one’s own property (ius in propria).

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A limited real right is a real right held by a non-owner in the property owned by another (ius in re aliena) eg servitudes.

Real rights -

Real rights are categorized according to their nature and the entitlement to hold them.

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A real right is either the right of ownership or some other limited real right.

The right to ownership -

This is the most complete real right and constitutes the most comprehensive relationship between a person and a thing.

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Ownership is the only real right that one can hold in respect of one’s own property (Ius in propria).

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Ownership is an independent right, whereas other rights in respect of property are derived from the right of ownership and have a more circumscribed content.

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If a right in property is real in nature and is held by a person other than the owner of the property, the right is classed as a limited real right (ius in re aliena).

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Servitudes are limited real rights, usually in respect of land.

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A servitude entitles the holder thereof to use the property owned by another person.

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Thus, the servitude consists of a restriction on the right of ownership of the owner of the property in question.

What does ownership entail? The main legal property rights are the right: -

Of possession,

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The right of control,

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Of exclusion,

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