Property notes 2 - LT3 AND LLBU PDF

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Property notes 2.0 Chapter 7 Acquisition of ownership -

Original acquisition = this is appropriation, accession, acquisition of fruits Derivative acquisition = transfer, delivery, registration. This is a far more common form of acquisition of ownership. Different rules pertain to movables and immovables. Ownership of moveables is obtained by delivery, while ownership of immovables is obtained through registration. Both are forms of transfer ownership

Original acquisition The acquirer gets ownership through the operation of law. At the same time, any previously existing ownership rights are terminated. The factual situation is assessed objectively, taking into account factors like physical control and the appropriate mental attitude. The will or intention of the previous owner isn’t relevant to the enquiry. Most important modes of the original acquisition of ownership are: 1. 2. 3. 4. 5.

Appropriation Accession Manufacture Mixing Acquisitive prescription

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Appropriation = appropriator must meet requirements, it cannot be owned by someone else, a thing must be capable of private ownership, the unilateral taking of possession by appropriator, control must be sufficient and effective, intention to become the owner and applicable legislation must be considered.

2. Accession = when two separate interties are joined to make another singular thing (like a car). The owner of the principal component of the composite entity automatically becomes the owner of the accessor by operation of law. The accessory loses independent legal identity. The previous owner of the accessory loses ownership, but they can claim compensation. The joined thing retains its factual identity and accession is determined objectively. -

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This kind of accession always involves industrial/ human intervention to bring about the join. The courts apply a special test to determine which of the moveables is the principal thing. However special pragmatic rules apply when it comes to writing on paper, painting on canvas and the welding together of previously separate items. The accession of moveables= the joint can’t give rise to manufacture (that would e mixing). The join must be permanent, and the central issue is if the join leads to termination of the legal identity of one of the joined components hence a reallocation of ownership rights.

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There’s no single approved test by the court to determine which item is the principal thing and what’s the accessory judges use different approaches which can result in different conclusions. Sometimes the judges will consider the more valuable item as the principal and sometimes they believe that the thing that gives the composite thing its identity is the principal thing. The size of the thing can give rise to the court interfering that thing is a principle. If a thing is added to another thing merely as atonement the former will usually be regarded as an accessory. Sometimes the court will take the view that no accession has occurred but that the join has, in fact, created an entirely new thing. Khan v Minister of Law and Order 1991 = court held that the item that gives the composite thing its character, form and function should be regarded as the principal thing. The accession of movables to immovable What’s attached to land becomes part of the soil as an accessory. Human effort s nearly always involved in joining movable things to immovable property. Accession f movables to land take the following forms: - planting and sowing = all that’s planted in the soil accede to the soil. The owner of the soil owns the plants growing out the soil. When accession must occur the seeds/plants have taken root and draw nourishment from the soil. - building = the general rule is that everything built on or attached to the landforms part of the land as an accessory. The owner of the land therefore also owns that which is attached to the land or the building on the land. Whether the building has led to accession is a matter of fact the underlying principles are publicity and protection of ownership. - the attachment must indicate permanency. The intention of the attachment should interfere from the two previous factors (the nature and purpose of the attachment and the manner and degree of attachment). Courts have applied a traditional approach. This for of accession occurs naturally without human intervention.

How to approach inaedificaio -

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The correct approach is to consider tee interplay of all 3 actors. From an objective view, the movable has been attached firmly and is meant for permanent use, introducing subjective considerations isn’t acceptable. In these cases, accession should be confirmed. If the attachment is ambiguous the court has a choice whether to confirm or deny accession. It should decide this question based on policy. The court would have to look at preserving the new thing with using the publicity principle. Publicity principle is there to protect innocent third parties and make all parties aware that the sale is taking place and who the owners. This protects them and the state from abuse. If it's not clear = the intention at the time of the attachment for the joined thing is to serve the principal indefinitely then the court should choose to invoke the policy to protect ownership of the movable. The choice would be consistent with the constitutional provisions prohibiting the arbitrary devotion. Only in special circumstances should the policy to preserve the whole be invoked when an attachment is ambiguous.

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Acquisition of fruits Fruits can be produced by the principal thing. When they separate from the principal, they gain separate legal identity. He owner of the principal automatically becomes the owner of its fruits when they attain a separate legal identity.

Manufacture -

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Occurs when a person makes a new product from materials that are from another person. If the maker owns the raw materials, then it's fully his. If they belong to someone else, then the contract between owner and maker will determine ownership. If there’s no contract, then you look at the manufacture rules. The manufacturing process must irretrievably alter the form, nature, chemistry of the thing for the rules of specificatio (manufacture) to be applicable. Specificatio doesn’t involve a mix of the property of various owners. What’s crucial is if a new thing is created which cant be reduced to its original form.

Mixing -

When similar things belonging to different owners are joined but they’re inseparable. This is usually a fungible thing and therefore easily replaceable items. This is done without consent so each owner’s portion must be legally separated before it can be vindicated.

Acquisition of ownership Open and uninterrupted possession of the property for a sustained period can lead to the acquisition of ownership by acquisitive prescription. The nature of the possession is sometimes incompatible with full ownership but may still lead to the acquisition of a limited real right (like a servitude). When the acquirer has possessed the property openly as if the owner for 30 continuous years then they acquire ownership by operation of law. Acquisitive prescription is governed by the Prescription Act 68 but the source of the rule is common law. Acquisitive prescription applies to both moveable and immoveable property. Requirements of possession -

Type of possession requires is civil possession (a combination of sufficient and effective physical control with the intention of an owner) If possession of the property has been in contravention of a statue then the possessors can’t have ownership of the land even if you meet the other requirements. The property must be possessed openly as if the possessor was the owner thereof. Without force, without secrecy and revocable permission. Whether or not the property was possessed openly is determined objectively.

Interruption of prescription

If the 30 years is interrupted by natural means like a flood or hurricane the prescription act provides that there is an involuntary loss of possession. Then the prescription won’t be interrupted as long as the possessors regain possession within 6 months or by other lawful means within one year of the dispossession. -

If the possession period is interrupted by civil means (like the true owner pitching up and instituting civil proceedings) the service of process stops the running of the prescription until there’s verdict for the case. If the true owner is unsuccessful or withdraws his claim or abandons a successful judgment then the prescription carries on as if uninterrupted. If the claim succeeds and is acted upon the date of the final judgment is the date that the prescription is interrupted.

Suspension of prescription The suspension will happen if the true owner’s circumstances change and that changes his ability to form or maintain animus domini which is a necessary element of ownership. (prescription ceases to run against a person who can’t assert his rights of ownership). This protects people who may suffer from mental illness, or suffered a comma as they don’t have the capacity nr can they act to protect their ownership right. -

Sometimes the impediment is legal for example the prescription can’t run against a person who is a minor or a criminal.

Effect of acquisitive prescription The effect is that the acquirer becomes the owner and is entitled to demand registration of the land in their name, a court order is needed before the register o deeds can register the property unless the previous owner is willing to cooperate. Acquisitive prescription of state land has been prohibited by the state land disposal act. Expropriation The state has the power given to them in s25 to dispossess someone of their land. There's a transfer in the title and then it is repurposed for a public interest or public purpose. Derivative acquisition of ownership Where the new owner titles derive from the previous owner. This is also referred to as transfer of ownership involving a bilateral transaction transfer of ownership occurs through a contract of purchase and sale but such a contract isn’t an essential element. Transfers can also be through donation. Transfer of ownership as a separate legal concept. Transfer of ownership is separate from the contract underpinning it, transfer of ownership deals with what’s required to achieve transfers while the contract side for the transfer focuses on why ownership is being transferred.

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For a transfer to take place there must be a real agreement to transfer ownership and conveyance. 1. The seller must intend to transfer ownership to the buyer 2. Buyer must intend to acquire ownership 3. Buyer must effect payment 4. Seller must deliver

Transfer of ownership as an abstract juristic act -

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South African law makes use of an abstract system to transfer ownership. This means that the rea agreement and delivery are abstracted from the underlying cause of the contract (the transfer) This system promotes legal certainty and protects third parties who rely on the transferors’ apparent ownership.

Requirements for a valid transfer 1. A valid real agreement between two parties 2. A form of conveyance either in delivery or registration. - The subject mental element forms part of the real agreement while the objective element consists in the form of conveyance. The form of conveyance accords with the publicity principle which requires that transfer of ownership be an objectively verifiable public act. The only exceptions are marriage in COP and declarations of insolvency. Both cases ownership is automatically transferred. Real agreement Property in question must be capable of private ownership. The parties must have the legal capacity to transfer ownership. The transfer must be undertaken by the owner or by an authorized agent. Both parties us tinted to transfer ownership. (NEMO PLUS IURIS) -

Nobody can give what he or she doesn’t have = key fundamental property A non-owner can’t transfer ownership. If the current owner’s rights are limited in some way then their own as currently limited is what they can transfer to the buyer....