Exam (elaborations)
Law of property/ Property law exam notes
- Institution
- Stellenbosch University (SUN)
In- depth notes, covering all chapters, ready for any exam or semester test
[Show more]
Seller
Follow
Content preview
PROPERTY LAWLEARNING UNIT 3 I INTRODUCTION, TERMINOLOGY & BASIC
CONCEPTS I
Theme 1
LO1: Advise either party to a dispute on the methods of acquiring ownership with regards
to a set of facts;
LO2: Explain the legal position regarding the following forms of original acquisition of
ownership: a) occupatio; b) accessio: movables and immovables; movables and
movables; c) confusio et commixtio; d) specificatio; e) acquisition of fruit; f) expropriation.
g) Acquisition by means of prescription, with reference to: Prescription Act 68 of 1969
LO3: Explain the requirements for derivative acquisition of ownership.
LO4: Distinguish between the passing of ownership and the transfer of ownership.
LO5: Define a real agreement.
LO6: Distinguish between cash and credit sales. LO7: Distinguish between the following
forms of delivery: a) traditio vera b) traditio ficta c) clavium traditio d) traditio longa manu
e) traditio brevi manu f) constitutum possessorium g) attornment
LO8: Briefly explain each category of available remedy that can be used to protect
ownership and list the actions that fall into each category, i.e.: a) Real remedies; b)
Delictual remedies; and c) Enrichment remedies.
LO9: Distinguish between the following remedies , including the legal requirements that
must be established in order for an owner to successfully rely on each one : a) rei
vindicatio; b) actio negatoria; c) interdict; d) Actio ad exhibendum c) condictio furtiva. d)
actio legis Aquiliae.
LO10: Apply the various remedies that may be used to protect ownership, namely a) rei
vindication; b) Action negatoria; c) Condictio furtive; d) Action legis Aquiliae; and
LU011: Discuss the limitations on the use of the rei vindicatio, with specific reference to
the following: a) Relevant circumstances; b) Estoppel; c) Stolen money; and
LO12: Advise a party to a dispute on the protection available to an unlawful occupier
against an unlawful eviction.
LO13: Advise a party to a dispute on eviction proceedings, bearing the complexity of
factors involved in eviction proceedings in mind., with specific reference to the case of
Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC).
LO14: Briefly explain the ways in which ownership may be terminated;
LO15: Briefly explain the ways in which a legal relationship may terminate, i.e.:
Transfer of ownership;
Loss of physical control; and
By operation of law.
LO1: Advise either party to a dispute on the methods of acquiring ownership
with regard to a set of facts
Original acquisition of ownership is not dependent on the lawful ownership of
illegal predecessor, while this is required for derivative acquisition of ownership
This means that the benefits and obligations of the previous owner are not
usually passed to the new owner in the case of original edition of ownership
If there is no previous owner acquisition of ownership takes place through
appropriation (occupatio) of a thing that is not owned (res nullius) or of a thing
that has been abandoned by its owner (res derelicta)
In the case of original acquisition of ownership, the cooperation of the
, previous
owner is not necessary, but derivative acquisition of ownership can legally only
take place with the previous owner’s cooperation
In certain cases of original acquisition of ownership there is a legal predecessor
who is the owner, but ownership is passed to the new owner without the legal
predecessor's cooperation
o This takes place by means of accession, prescription and expropriation
o Acquisition of ownership in these cases takes place by operation of law
and ownership is not transferred
LO2: Explain the legal position regarding the following forms of original
acquisition of ownership:
a) Appropriation (occupatio)
Appropriation is the unilateral exercising of physical control over a corporeal
thing that can be owned (res in commercio), but which is not owned by
anyone (res nullius or res derelicta) with the intention of becoming the owner
- Requirements:
1) Physical control (corpus)
2) with the intention of being the owner (animus domini)
3) of a corporeal thing not belonging to anyone
1) Physical control (corpus)
- It must be possible to physically control the thing
- The nature of the physical control depends on the circumstances of the case
and is objectively determined
- The physical control need not be lawful
- Although the exercise of unlawful physical control might be a crime, the
controller can become the owner of the object, for ex. Pornographic material
- In some cases, however, the acquisition of ownership is prohibited by statute,
for ex. uncut diamonds
2) Intention (animus)
- The physical control must be exercised with the intention of the controller to
be the owner (animus domini)
3) Object
- The control must be exercised in respect of a corporeal thing, which does not
belong to anyone
- A distinction is made between things which are not owned by anyone (res
nullius) and things which have been abandoned by the owner (res derelictae)
Things with no owners (res nullius)
Things with no owners (res nullius) are things which can be owned, but
,which are not owned by anyone at a particular moment. Ownership of these
things can be acquired by appropriation
o The following principles apply in the case of things with no owners:
𝗌 According to principles of common law, wild animals, birds, reptiles, fish
and insects have no owners if they are in their natural state or if they
were under control but have now escaped and cannot be caught again,
have disappeared from sight or are within sight but cannot be pursued
𝗌 In terms of section 2(1) of the Game Theft Act and owner of wild animals
held
for commercial or hunting purposes on land fenced in accordance with
section 2(2), or held in a cage, kraal or vehicle on the land, does not lose
his ownership of these animals should they escape or be removed
without the owner's permission
𝗌 Domesticated animals are animals which are wild by nature, but which
are
owned by someone because they are in the habit of returning to the owner
𝗌 Domestic animals are animals which are not, in the eyes of the community,
wild animals, for instance dogs, cats, horses, chicken, cattle, sheep etc.
Such animals remain the property of the owner, irrespective of where
they are and cannot be appropriated
𝗌 Renewable or replaceable products of the sea have no owner and can
be
appropriated. Ex. sea grass, shells, shellfish and fish
Things that have been abandoned (res derelicta)
Abandoned things are lost or thrown away by the previous owner with the
intention of renouncing his ownership. In these circumstances ownership can
be acquired by appropriation
o If an object is merely lost without the owner giving up his ownership, the person
who finds the thing cannot become the owner through appropriation, since the
thing was never abandoned
o The intention to abandon is not lightly assumed when a thing is lost
o In some instances, things do not become res derelicta after being abandoned
by their owner, but become the property of the state, for ex. assets of a company
which had not been transferred at the time of dissolution of the company
b) Accession (accessio)
Accession takes place when two corporeal things or parts of things are
combined either through human activities or natural process is in such a way
that the one thing or part of a thing loses its physical or economic independence
and becomes a component of another thing. The thing which remains essentially
independent is called the principal thing, while the thing which is merged or
, combined in such a way that it loses independence, is called the accessory thing.
The owner of the principal thing becomes the owner of new thing by operation
of law without him necessarily being aware of the accession
- Technically, accession is not a way in which ownership passes from 1 owner
to another, but a process by which the accessary thing loses its independence,
and the principal thing is extended as a result of the merger
- However, since it usually takes place without the cooperation of the owner of
the accessory thing, is regarded as original acquisition of ownership
- Ownership of the accessary thing is not transferred, but the accessary thing
becomes part of the composite thing and is no longer an independent object
capable of being owned
- Passing of ownership through accession takes place only if:
1) the composite thing is not easily divisible
2) the principle and accessory things can be distinguished
3) the accession does not amount to manufacture (specificatio)
Test: the test for determining which is the principal thing and which the accessory
thing, is based primarily on the question of which thing has lost its independence and
has become part of the other thing. Other factors are also taken into
consideration, such as which has the greater mass or value which serves merely as
decoration
There are a number of exceptions to these criteria:
Accession of immovables to immovables
o Accession of two immovables usually takes place naturally without human
activities or interference by the gradual adding of soil to a piece of land by
alluvion all the sudden in addition to a piece of land through flooding (avulsion)
Accession of movables to immovables
The accession of movables to immovables usually takes place through
human activity whereby a movable is permanently attached to an immovable.
The owner of the immoveable becomes the owner of the composite thing where
the movable accessory was permanently attached to the principal thing, and
must in certain circumstances compensate the previous owner of the movable
accessory
o In cases of the accession of a movable to an immovable the movable thing is
always regarded as the accessory thing and the land is regarded as the
principle thing and, by application of the doctrine of superfices solo cedit, the
movable accessory thing becomes immovable
o Accession of movable and immovable things
a. Planting and sowing (plantatio et satio)
b. Building (inaedificatio)
The benefits of buying summaries with Stuvia:
Guaranteed quality through customer reviews
Stuvia customers have reviewed more than 700,000 summaries. This how you know that you are buying the best documents.
Quick and easy check-out
You can quickly pay through EFT, credit card or Stuvia-credit for the summaries. There is no membership needed.
Focus on what matters
Your fellow students write the study notes themselves, which is why the documents are always reliable and up-to-date. This ensures you quickly get to the core!
Frequently asked questions
What do I get when I buy this document?
You get a PDF, available immediately after your purchase. The purchased document is accessible anytime, anywhere and indefinitely through your profile.
Satisfaction guarantee: how does it work?
Our satisfaction guarantee ensures that you always find a study document that suits you well. You fill out a form, and our customer service team takes care of the rest.
Who am I buying this summary from?
Stuvia is a marketplace, so you are not buying this document from us, but from seller daniellenortje. Stuvia facilitates payment to the seller.
Will I be stuck with a subscription?
No, you only buy this summary for R203,00. You're not tied to anything after your purchase.
Can Stuvia be trusted?
4.6 stars on Google & Trustpilot (+1000 reviews)
48298 documents were sold in the last 30 days
Founded in 2010, the go-to place to buy summaries for 15 years now