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PROPERTY LAW NOTESREAL AND PERSONAL RIGHTS
Introduction to Real Rights
Silberberg – ‘A real right is a claim of a legal subject to a thing against other persons’.
Ownership is the most complete example of a real right – an owner has the right to alienate, destroy
or enjoy or deal with their property in whatever way they see fit subject to the law.
Limited Real Right – A right to a thing belonging to another. It is a real right but it is subject to the
rights of another over that thing.
Some Examples of Real Rights – Ownership, Servitudes, Pledge, Mortgage, right to inherit etc.
NB – SA does not have a closed system of real rights. There are many real rights that are recognized
under the likes of legislation now like mining/mineral rights under the MPRDA, labour tenancy,
sectional title ownership etc.
This open system means we need some method of classifying real rights. So I ask the question: how
do we define something as a real or personal right?
Determining Real Rights
Section 3(1) of the Deeds Registry Act says – the registrar has a legal duty to register certain
categories of RR as well as any RR not mentioned.
Section 63(1) says personal rights may not be registered unless in exceptional circumstances, the
condition is ancillary to a registerable condition or right.
NB to remember – the difference between real and personal rights is the distinction between the
law of things and the law of obligations.
Example of a personal right – after this lesson, you all owe me money. I cannot claim that money
from just anyone. I cannot go to my next door neighbor and demand payment of a sum of xxx.
HOWEVER, if I own a house, it doesn’t matter who tries to exercise some right over it, I can prevent
them if I please because the right attaches to the thing and not the person.
Personalist theory of RR – the holder of a RR has a right enforceable against all others. Other people
can’t deal with the thing in a way inconsistent with the holders entitlement to control. The right is
absolute.
NB – there are exceptions to the absoluteness of a RR like estoppel or the mandament van spoilie.
The Test – Subtraction from the Dominion and Intention Tests
In Ex Parte Geldenhys it was held by De villiers CJ – ‘One has to look not so much to the right, but to
the correlative obligation. If that obligation is a burden upon the land, the corresponding right is real
and registrable, if it is not such but merely an obligation binding on some people or others, the
corresponding right is personal. A right in personam cannot as a rule be registrable’.
In simple terms – it means the obligation runs with the thing.
, Intention test qualifies the Sub from the Dom test. The parties should have intended the correlative
duties to be binding not only on the present owner but for the duration on successors in title. Can’t
be said to burden the land if restricted to the current parties.
Canvassing the Case Law
Ex Parte Gendenhuys
- Review the facts
- The provisions related to time and sub-divison limited the rights of owners under common
law and are thus a subtraction from the dominium of each child.
- The provisions as they relate to sub-division were a real burden upon the land and were not
just obligations on the kids, but would also bind successors in title.
- NB the obligation to pay 200 pounds was a personal right because a payment of money
cannot easily be held to be a real right. It would not bind successors in title.
- However, in this instance it was registerable because it was intimately linked to the real right
condition and so failure to do so would prejudice others.
Odendallrus Gold , General Investments case
- Review facts
- A real right has been acquired here to the transferred land as the transferor acquired a right
to claim the transferee & successors in title refrain from exercising an entitlement they
would have otherwise had.
- This is clearly a subtraction from the dominium and it binds successors in title.
Lorentz v Melle
- Review the facts
- Court said that a RR has not been established as the conditional obligation to pay attaches
not to the land but merely to the owner.
- To burden the land the curtailment had to be in relation to enjoyment of the land in the
physical sense
Denel v Cape Explosives
- Review facts
- - Court develops a 2-stage test to determine if the rights are real rights.
- First step: Intention of the person who creates the real right must be to bind not only the
present owner but successors in title.
- Second step: Nature of right must be such that the registration of it results in a subtraction
from the dominium of the land.
- Court found here that C and D intended to pass and receive transfer subject to both
conditions.
- Said the conditions were not independent of each other. Specifically said that conditions
were binding on D and successors in title.
- Such conditions constituted a burden upon the land as the use of the property by an owner
was restricted.
In Closing
The deeds registry serves two important functions:
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