Guaranteed pass of you study these notes. Its a very comprehensive summary of the whole module. - PVL3701
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Course
Property law (PVL3701)
Institution
University Of South Africa (Unisa)
Guaranteed pass of you study these notes. Its a very comprehensive summary of the whole module.
I studied them the day before the exam and obtained very good marks. I have studied with UNISA for 9 years, so I have very good understanding of how to study for the UNISA Exams.
Property law can also be described as patrimonial law – the law dealing with a person’s patrimony
(all his/her assets). Patrimonial law is divided into the law of things, the law of succession, the law of
obligations and intellectual property law. The law of things as a subdivision of patrimonial law falls
under private law.
A real relationship is the particular legal relationship between one or more legal subjects and a
thing.
The concept ‘‘real relationship’’ is broader than the concept ‘‘real right’’, since real relationships
include both real rights and certain unlawful real relationships. There are usually two sides to a real
relationship (and therefore, if it is a lawful real relationship, to a real right), namely
(i) the subject-object relationship between the particular legal subject and the particular
thing involved in the relationship
(ii) the subject-subject relationship between the particular legal subject and all other legal
subjects
A real right is therefore always a dual relationship: the subject-object (thing) relationship and the
subject-subject relationship.
In principle, a legal subject may acquire rights from a real relationship only if it is lawful, that is, if it
complies with the legal rules. A legal subject will not acquire any rights from unlawful real
relationships, although the relationship as such may still have consequences for the law of things.
It follows that the holder of bare dominium could be an unlawful occupier if he or she occupied
property without the D consent of the usufructuary.' - the unreported judgment of Rogers AJ in
October NO and Another v Hendricks and Another (WCC case No 23189/2011; 31 January 2013;
[2013] ZAWCHC 12) para 15.
A legal subject can be defined as any person (whether a natural or a legal person) capable of acting
as a subject in legal relationships and of acquiring rights and incurring duties in the process.
A legal object can be defined as every object with which a legal subject has a legally recognised
relationship. These legal objects may be divided into things, performances, immaterial property and
personality property.
The most important real relationships are usually divided into three categories:
(i) ownership, which is always a lawful real relationship and therefore a real right
(ii) possession (physical control of a thing with the intention of an owner (animo domini)),
which is always unlawful and is therefore only a real relationship, not a real right.
(iii) holdership (physical control of a thing with the intention to derive a benefit), which may
be lawful or unlawful. When it is lawful it could give rise to a real right
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The right which has its origin in a lawful real relationship is known as a real right. Only lawful real
relationships, namely ownership and lawful holdership, confer real rights. Possession and unlawful
holdership, on the other hand, are unlawful real relationships, which do not confer any real rights,
although the law attaches certain consequences to such relationships.
A real right can be defined as a lawful real relationship between a legal subject and a thing which
confers direct control over the thing on the legal subject, as well as the relationship between the
legal subject and all other legal subjects who must respect this relationship.
Personal rights (creditor’s rights/claims)
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Entitlements:
The capacities conferred on the legal subject by virtue of a right, in this case a real right, are called
entitlements. The entitlements of a real right determine which acts a legal subject is entitled to
perform in regard to a thing.
In the case of the real right of ownership, the most important entitlements are the legal subject’s
entitlements to:
Control
Use and enjoyment,
Burden (encumber with limited real rights such as servitudes or real security rights
Enjoy the fruits
Consume
Alienate (sell and deliver)
Vindicate (claim from whoever is unlawfully in control)
Remedies
When the law recognises a particular real relationship or a particular real right, enforcement takes
place by means of a specific real remedy. A real remedy can be defined as a legal process with its
own purpose, for which certain requirements are set and which protects, maintains or restores a
particular real relationship in a specific way.
A real remedy, therefore, finds application in lawful (maintain, protect or restore the real rights
concerned) and unlawful real relationships (the spoliation remedy).
The function of the law of things can be summarised as follows:
1 It strives to harmonise or regulate various competing ownership rights, especially between
neighbouring owners
2 It strives to harmonise or regulate an owner’s rights in regard to his/her thing with the rights of
other limited real right holders to the same thing
3 It controls the acquisition, protection and extinction of things and real rights
The sources of the modern law of things in order of priority:
(i) the Constitution of the Republic of South Africa, 1996
(ii) statute law
(iii) case law
(iv) common law (Roman-Dutch law)/indigenous (customary) law
It should be noted that, in a multicultural society such as South Africa, indigenous law rather than
Roman-Dutch law may be the subsidiary legal system in certain instances.
THINGS AS LEGAL OBJECTS
A thing may be defined as a legal object which is an independent part of the corporeal world, is
external to humans, subject to human control and is useful and valuable to humans.
The legal relationship between a home owner and a grain of sand in his/her garden has no legal
consequences, in principle, and the grain of sand would not be considered a thing. A heap or load of
sand, on the other hand, could have value, and would therefore be regarded as a thing. Whether the
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law would regard a specific thing as being of value to humans would depend largely on the
circumstances and would be determined objectively.
Briefly distinguish between property and things: (5 marks)
Everything that forms part of a person’s estate (½) can be described as ‘‘property’’. Property
therefore includes a variety of assets, (½) such as things (½) (for example, a car, a computer and a
mobile phone), personal rights (creditor’s rights/claims) (½) (for example, the right to one’s salary,
the right to the proceeds of an insurance policy or the right to claim the purchase price in terms of a
contract of sale) and immaterial property rights (½) (for example, copyright and patent rights). A
thing is a specific asset (legal object) in a person’s estate, ie it is an independent part (½) of the
corporeal world (½) which is external to humans, (½) subject to human control (½) and is useful and
valuable to humans. (½)
CLASSIFICATION OF THINGS
All things may be classified according to either of two major criteria, namely:
(i) their relation to humans - Here we distinguish between negotiable and non-negotiable
things.
(ii) the inherent nature of the thing concerned
Negotiability - In principle, all things are negotiable (res in commercio = things which are in the legal
sphere or in commerce or trade). The following things are excluded from commerce (res extra
commercium) and are therefore not negotiable:
(i) Res communes omnium: things that do not fall under private legal control, but that are
available to be used by all legal subjects, for example, free air and things that are really
only susceptible of human control by communal use.
(ii) Res publicae: things that belong to the state but that are used for the general benefit
and use of the public, for example, national parks, the seashore, et cetera.
(iii) Other res extra commercium: things that are not freely negotiable for another reason,
for example, body parts or a corpse. For religious and/or ethical reasons a corpse and
parts of a corpse are not regarded as things.
We therefore distinguish between:
(i) res alicuius: things belonging to an owner and forming part of his/her estate
(ii) res nullius: things that are susceptible of ownership, but that belong to no one at a
particular stage, for example, wild animals or fish or a thing that has been thrown away
by its owner who no longer intends to be the owner (res derelictae).
Singular and composite things - A horse, a stone or a brick are examples of singular things. A
composite thing is made up of constituent parts, or even of independent things that have been
joined together to form a new entity, for example, a car or a bicycle.
A collection of things must be distinguished from composite things. Two forms of collections are
relevant: In the one we deal with a collection of similar principal things and in the other the
collection consists of different types of principal things. In both cases the collection is treated as a
singular unit. Here we distinguish between the following:
(i) A collection of similar things, for example, a flock of sheep, a swarm of bees or the stock
of a shop may be treated as a unit by the law, and that unit is then a composite thing for
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