real rights.docx

7/28/2019 REAL RIGHTS.docx

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REAL RIGHTS

A right is a legally recognized, valued claim by a subject to an object

An object is anything in regard to which a person can acquire or hold rights

A subject is a bearer of rights can be natural or juristic persons) Distinction between real

rights and personal rights

Real right rights to something; Chetty case; most comprehensive right

Personal right rights to performance; a claim to act positively or refrain; not considered as

a property right

Limited real rights rights protected where person enjoys property of another person

(mortgage, lease, servitude) i.Mortgageii. Leaseiii. Servitude: Praedical adjacent property

used for others; Personal servitude usufructi v. Mineral rights Lebowa Mineral Forum;

mineral rights is not property (rather usufruct); but court has denied this; First Certification

Judgment v. Liens right of retention exercised by a person who had done work for on

another persons property

May include patrimonial rights and immaterial property rights (copyright, patents,

trademarks)B) Categories of real rights

Real right without restriction is ownership; all other real rights are limited

Roman law knew a closed system of real rights; not Roman-Dutch lawSouth Africa does

not have a closed system (new real rights can develop)

Mortgage (hypotheca)

Perpetual Lease (emphyteusis)

Servitude:i.Praedical adjacent property used for othersii.Personal servitudeusufruct

Mineral rightsi.Lebowa Mineral Forumii.mineral rights are not property (rather usufruct)

however thecourts have denied thisiii.First Certification Judgment 9

Liens right of retention exercised by a person who had done work for onanother persons

property


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MortgagesC) Characteristics of real rights

Must consider the intention of the person creating the real right doesntonly bind the

current owner, but also future owners,

Fine Wool Products Case

Ex Parte Geldenhuys

Felix v Nortier

Kain v Kahn

Pearly Beach Trust CaseD) Requirements for recognition of new real rights

There are a number of types of real rightsnot a closed system in SouthAfrica

Arguable that we should return to a closed list of items

S3(1)(r) of Deeds Act long list of real rights; registrar can further register any rights that

are on the list

S16 of Conveyance lawownership can be conveyed only through a deedof sale

S63 of Deeds Act NB!i.Ex Parte Geldenhuysii.Have laid down certain requirements for the

registration of realrightsiii.Section is couched in negative termsE) Registration of real rights

Right is adequately protected in registration

Ownership in land must be conveyed from one person to another processof publicizing and

recording

Registration has a dual functioni.Indicates the act of delivery in respect of acquisition ofimmovablesii.Provides a public record of real rights

Deeds Registries Act is fundamentalF) Classes of Personal Rights

Odendaalrus case

S102 of Deeds Registries Act provides definitions including rightswhich become real on

registration

Rights of pre-emptioni.Crous v Utilitas


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Revisionary rights10

i.Land sold by government, where property was sold in condition if not used in accordance

to rules, would revert to the localgovernment

Registrar of Deeds v Ferreira Deep

S20 of Alienation Act sale of residential property (registered against titledeeds)G)

Registration of personal rights

S63 of the Deeds Registries Act must be registered in deeds registry,subject to exceptions;

however, generally not registeredunless in proviso (if they are complimentary they may be

registered)

Personal rights may be ancillary to real rights they are so intimatelyconnected with the real

right (Ex Parte Geldenhuys)

S63(1) does not related to lease, mortgage bonds or grantsH) Regis trability of rights and

changing face of property law

Meaning is found in definition section of Alienation Acti.In relation to land means it is

capable of being registered as asubject of separate titleii.All laws relating to registration must

be complied withiii.It must be capable of being transferred

Registrabilityi.Only real rightsii.Personal rights are only registered under certain

conditionsiii.Hollins v Registrar of Deeds

Distinction between Personalist and Classicalist approachesi.PersonalistFocus on person

against the right is exercised

Real rights are absolutePersonal rights are relative to enforcement and situation right to

pursuit to claim stolen goods (Chetty case)

Criticisms A)A fiction to regard real rights as creating a universalobligation (which all

outsiders must not interferewith)B)Will not always operate absolutelyC)Some personal rights

are absoluteSolomon v DuPreez; Dunn caseii.Classicalist

Real and personal rights in regard to the object of the right


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Real rights - relationship between a person and an object;give rise to power and control of

corporeal things; directcontrol11

Personal rights relationship between persons; give rise toa claim against another person;

governs relationship betweenACQUISITION OF REAL RIGHTSA) Publicity Principle

Real rights are absolute, so the holder may claim control over the object of the right

Hence it is desirable that people are aware that someone owns the right

So it is best if the world at large are aware that the real right is owned by acertain person

hence advertised

If it is the transfer of movable property must be publicized to the outsideworld; but

rebuttable presumption of law that the possessor of a movablething is also the owner thereof

(so possession)In the case of immovable propertyeffect is found in the deedsregistration

acteveryone is given access to these records (registration)

So calleddoctrine of constructive notice B) Modes of acquisition of real rights

It can either be newly created without the co-operation of the predecessor in title; or it is

already in existence and merely transferred from one toanother, or created without the co-

operation of a predecessor in titleoriginal and derivative acquisition

Original acquisition (unilateral) includes occupation of unowned things,accession,

specification, mingling, mixing and prescription; not affected by infirmities in the title of a

predecessor

Derivative acquisition (bilateral) result of a bilateral transaction with co-operation from a

predecessor in title

Derivative acquisition:Dichotomy between contract and deliveryoIf a right already exists

then the transfer constitutes the performance of a contract; but still a separate legal

transactionoWhereas if there is an already existing right then it istransferred in delivery

Derivative acquisition:Elements in the transfer of rightsoThe object of the real right must be

a thing in commerceoTransferor must be legally competent to be transfer theobject(contractual requirements)12


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oTransfer must be effected by the holder of the real right (cannotcontract to transfer

something that doesnt belong to that person)oFor transferor Mvusi v MvusioTransferee

must be competent to acquire the rightoOnly transferee can accept the transfer oOnly through

recognizable forms of delivery or registrationoMere physical deliver or registration is

insufficient must also be intention to be boundoOnly on payment of the contract will the

transfer take placeoMust be based on just cause

Derivative acquisition: Abstract and causal theories of transfer oIf the transfer is based on a

contract then it is viewed as part of a causal theory of transferif the cause for the transfer

isdefective, the real right will not passoOpposite approach to causal theory is the abstract

theory provided agreement to transfer real right its valid, the real rightwill pass in the

pursuance (regardless of the defective cause of the contract)oCausal system was originally

applied, but now this has changedto the abstract approach (Commissioner of Customs

case)oInAir-Kel casecourt held that the abstract system should beused, except this case only

really dealt with the transfer of movable property; but this has been developed to immovable

inBrits v Eaton NO

Derivative acquisition: Just cause giving rise to transfer and theoriesoBecause the abstract

theory doesnt make a transfer of realrights dependant on the validity of the contract,

therefore, nowwhether a putative cause should be required for theeffectiveness of a transfer

oTherefore, arguable that there must be some real agreement between the parties

Derivative acquisition:Real agreement (vitiating circumstances) somecontracts are not

regarded as being viable and valid in South AfricaoContracts which have an illegal

objectoContracts, not illegal in themselves, but the law does not regardas sufficiently

importantoContracts which are unenforceable because the law requires parties to comply with

conditionsoIn individual cases are voidable as a result of mistake,misrepresentation, undue

influence or duressC) Good Faith or Doctrine of Noticenobody will be allowed to derive a

benefit from his own bad faith 13

Doctrine of notice acquisition from a counter-balancing considerationwith notice an earlier

personal right transferred cannot be permitted todefeat the other persons personal right

Application of the doctrine if the purchaser acquires ownership of something sold

knowingoIt was previously sold to another (successive sales) thisshould be known at the

time of transfer or deliveryoOf the undertaking of a predecessor in title to grant a servitudeto


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the owner of a dominant tenement (unregistered servitudes)purchaser will have to have the

servitude registeredoThat the acquisition is in conflict with the right of option, pre-emption

(these will be declared void)oOf the right of the lessee to occupy the thing soldoOf an earlier

undertaking by the predecessor in title toconstitute a mortgage of the propertyoSales in

conflict with right of security

Foundation and requirements of the doctrine of noticeoFraud was regarded as the theoretical

basis for the doctrine however, developed, and now mere knowledge of the prior right is

sufficientoRequirements

Existence of prior personal right

Infringement of a personal right by the subsequentacquirer

Knowledge of the existence of the prior personal rightD) Extra stuff oSpecificity principles

real rights can only exist in respect of specific things; owners do not have general

rightsoTransmissibilityon death, the heirs gain the property; highly personal rights cannot

be transferred freely; unless restricted by registration (i.e. right of pre-emption)

real rights.docx

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