property chapter 3

Question 1

what are the two types of relationships in respect of property

Answer 1

• Two types of relationships in respect of property: possession and rights

Question 2

what are rights in property

Answer 2

• Rights in property- claims by legal subjects in respect of property against other persons.
• The law acknowledges different kinds of rights in respect of property. The main distinction is between: real rights in property and personal (creditor’s) rights.
• The distinction between different kinds of rights is important because the way in which they can be acquired, exercises and protected depends on the distinction.

Question 3

what is the closed category list of rights

Answer 3

Closed category or list/numerous clausus- there are only a limited number of remedies, rights, ways of acquiring, ways of protecting etc. and that the content of each of those types is also set.

Question 4

explain servitudes

Answer 4

− Servitudes- limited real rights that are usually hold in respect of land. Servitudes entitle the holder (Rentia) to specified uses of property belonging to another and thus restrict the exercise of ownership (Gavin) entitlements by the owner. For example, in Jack’s will he may leave his farm to his son, Gavin, subject to the provisions that Jack’s wife (Rentia) is entitled to the use and fruits of the farm until her death or remarriage. Rentia becomes the holder of a limited real right (a usufruct) in respect of the farm when Jack dies. Gavin may not have much use and enjoyment of the farm while Rentia holds the usufruct but he is still the owner. Rentia has extensive rights of use and enjoyment of the farm but she does not have ownership. Thus, Rentia holds a servitude.

Servitude- a specific type of right over property:

Praedial servitudes- one land owner benefits from the use and enjoyment of another piece of land. The distinguishing characteristic is that the one piece of land is burdened and the other is benefited. The burden land is called the servient and the benefited land is called the dominant. Eg. A right of way that one land owner has over another. → X has a right of way over Y’s land.

Personal servitude- the distinguishing characteristic is that a specific person is benefited by the exercise of this right. Eg. A testator leaves all his property to his sons but subject to a right of the mother to use or enjoy the property until she dies or remarries→ a usufruct.

Question 5

what is a limited real right

Answer 5

• Limited real rights- real rights that are held by someone other than the owner of the property. i.e a servitude

Question 6

what is a real security right

Answer 6

− Real security rights- real rights that are created and enforced to ensure the performance of a specific obligation between two parties. They give the holder (creditor) an interest in the property of the debtor so that if the debtor fails to perform in terms of the contract, the creditor can realise her interest in the property to satisfy the debt. Eg. Pledge (movables) or mortgage (immovables) provides the creditors with certainty that a particular debt will be paid. If the debtor is unable to pay the secured debt, the creditor is entitled to demand that the specific property of the debtor, the thing which forms the object of the security right, be sold and the proceeds to be used to pay the creditor.

Question 7

examples of quasi servitudes/ sui generis rights

Answer 7

there may be rights in SA law that cannot be classified as either a servitude or a real security right, but still qualify as limited real rights. SA law acknowledges the development of new forms of real rights beyond those known in RL. Mineral rights cannot be classified within the traditional categories of rights.

Question 8

classical theoretical distinction between real and personal rights

Answer 8

• Real rights- establishes a direct relationship between the person and the property (a thing).
• Personal rights- establishes a relationship between one person and another in respect of a delictual or contractual obligation→ performance.
• This distinction is based on classical RL theory as it focuses on the objects (relationships) to which the particular rights relate.

Question 9

what is the personalist distinction between real and personal rights

Answer 9

• Real rights- the holder of a real right can enforce his/her right to property against all other persons. → The right is enforceable against anyone who interferes with the relationship between the right holder and the property and who disregards the holder’s entitlement over the property. (Absolute)
• Personal right- the holder of a personal right can only be enforced against the person who is party to the agreement creating the right. (Relative)
• This distinction focuses on the persons (enforceability) against whom the particular rights operate.

Question 10

why is the distinction between personal and real rights important

Answer 10

• It important to distinguish between real and personal rights as they are acquired and transferred in different ways, they may be exercised in different ways and they are protected differently.

Implications of the difference between real and personal rights- It is often difficult to distinguish whether a particular relationship in respect of property is a real right or a personal right. Often, the content of the right makes it possible to interpret the right as real or personal depending on the context. For example, Richard may agree with his neighbour, Ben, that Ben may allow his cattle to graze on part of Richard’s land. In this example, it is difficult to establish whether the right conferred on Ben relates directly to the land or directly to the relationship between Richard and Ben. Therefore, it is unclear whether only a contractual agreement exists or whether a real right is intended. If Ben’s use of the land is contractual, then he has a personal right and his successors in title will not be able to automatically enjoy the same benefit. If Richard and Ben intended a real right for Ben, then a successor in title to Richard would be bound automatically to permit Ben to graze his cattle. → The content of the right would be similar whether the right is personal or real: Ben’s cattle would graze on Richard’s land. However, the time period for which this activity may carry on if affected. If contractual agreement- right exists for as long as Richard is the owner of the land and Ben has cattle that can use the land for grazing. If the right is real-commitment would survive and bind Richard’s successor in title. To establish whether a right is real, the intention of the parties must be investigated including whether they dealt with each other as owners or in a personal capacity.

Question 11

what are the various reasons for the importance of the distinction between real and personal rights

Answer 11

1. Different legal rules are applicable to the various modes of transfer. The type of right determines the extent to which (and the persons against whom) it can be exercised. I.e. real rights may be exercised against anyone, whereas personal rights usually bind only a specific person or a defined group of persons.
2. Real rights are dealt with in property law, whereas personal rights are governed by the law of obligations (contract, delict and UE). Therefore, the distinction is important as it determines which remedies may be used to protect the right.
3. Real rights are transferred either by way of registration (immovable property) or delivery (movables), whereas personal rights are transferred by was of cession (giving up of rights). The Registrar of Deeds is required to register real rights in land but is not allowed to register any personal right in respect of immovable property (there are some exceptions) or any condition that does not restrict the exercise of a right of ownership. Thus, real rights in land are adequately protected by its registration in the Deed Registrar. The Deed Registrar Act also provides that ownership in land can be conveyed (transferred) by publicising and recording the transfer at the Deeds Registry. Limited real rights in land are also capable of being registered.

Question 12

explain the hierarchy of rights

Answer 12

Hierarchy of rights- Only certain kinds of rights are afforded the strong protection offered by registration in the Deeds Registry. This indicates a clear ‘hierarchy of rights.’ When rights in land are register, the holders are afforded the necessary security of title to enable them to enforce and protect their rights against the public and to use such rights as security to gain access to finance. It supports the idea that land ownership is the most NB right within the hierarchy of rights.

Question 13

what is the courts approach to distinguishing between real and personal rights

Answer 13

• S 63(1) of the Deeds Registries Act provides that only real rights in land are registrable and that personal rights may be registered only if, in the opinion of the Registrar, they are auxiliary or complementary to registrable real rights.
• Thus despite the theoretical explanation of the differences between real and personal rights, a practical approach is necessary to solve disputes about the registrability of unusual rights.
• The issues arise in the context of registrability of the Deeds Registry and Taxability in terms of SARS.
• The courts developed a twofold test to deal with the registrability of rights.

To determine whether a particular right or condition in respect of land is real, 2 requirements must be satisfied:

1. The right must be intended to bind successors in title.
2. The right must amount to a ‘subtraction of dominium’ – ownership rights must be diminished by the granting of the right.
   * The weighting afforded to each test varies in different court decisions and thus case law is very important to determine the registrability of rights.

Question 14

what are the guidelines of the court

Answer 14

Guidelines
1. Subtraction from dominium (Geldenhuys, Capex, Lorentz, Pearly Beach)
2. Intention to bind successors in title (Nel, Capex)
3. Not amount to a positive obligation (Schwedhelm)
* Obligation to pay money is registrable when/because:
• It is closely connected to another registrable right (Geldenhuys); or
• It is part of another registrable real right (Capex).

Question 15

when is the distinction between personal and real rights hard to draw

Answer 15

• Although, the first 3 categories of Roman real rights have retained importance, the demands of modern commerce and legal practice make it necessary to sometimes create new rights that do no resemble the RL kinds of rights. There are 2 reasons that make this possible:
1. SA law does not acknowledge a numerous clausus (closed list) of real rights- not all rights created and classified as real, easily fir into the traditional RL categories
2. Principles of freedom of contract and testation allow people to establish new, peculiar rights in respect of their immovable property
→ This can lead to difficulties in identifying accurately the nature of the right created. It is especially rights in land that create problems and specifically where a monetary obligation is attached to the rights created in terms of an agreement/will.
• The distinction between real and personal rights is important as only real rights in land are registrable and thus automatically enforceable against successors in title. Whereas, personal rights cannot be automatically enforced against a successor in title.

Question 16

Roman law personal and real rights

Answer 16

• SA law does not have a closed list of real rights. On this point, SA law deviates significantly from RL.
• In RL, there was a closed list (numeris clausus) of real rights. Actions were classified as either personal (actiones in personam) or as real (actiones in rem). An actio in personam involved a demand against a certain person for the performance of an obligation, while an actio in rem involved a demanded for the restitution of a thing (res). Obligations were seen as a bond between a particular plaintiff and a particular defendant (personal rights). Actions for the enforcement of ownership rights, real security rights and family or inheritance rights could be held against anyone (real rights). This enforcement of claims was as a result of a distinction between absolute rights (rights available against anyone) and relative rights (rights available only against a particular person).
• The absolute rights included ownership and limited real rights, were regarded as things (res) and were protected by an actio in rem → Real rights. The relative rights arose from obligations and were enforceable by an actio in personam → Personal rights.
• RL categories of real rights included ownership, servitudes, real security rights and a building right referred to as superficies.