Property Law

Introduction to Property – The Basics

Property Law Basics
• The primary focus in this course is not property or things (also known
as res in Latin) as it may be assumed.
• While it is true that of property law is as branch of the law of “things”,
concentrating on the “thing” itself will only confuse and mislead you
• Instead, we focus on the relationship between people and things
• The focal point for our study is about how we describe the interests
people hold in things. Additionally, we will consider the extent to
which those interests are granted legal protection in South African
law
Property Law Basics – What is Property?
• This can be answered by having regard to the common law, customary
law, statutes and the Constitution. We will engage the common law
understanding of property in more detail.
• In part, this is because of SA’s Roman –Dutch heritage and the
influence of the pandectist movement on it
• The constitutional understanding of property seems to be built on
and developing off the basics of the common law thus it would make
sense to start with the fundamental premise – the common law and
work out way through
 The Common Law Definition of Property
• Central to the understanding of the common law definition of
property is a good understanding of dominium, which is steeped in
control
• The Latin root for it is ‘dominus’ meaning lord, or master. It expresses
ultimate control.
• In the common law, relationships with the property are expressed in
terms of a hierarchy. The one who holds the most entitlements or
rights to property is given more preference over that property in most
instances. Thus, ownership is seen as the most complete real right in
property law.
The Common Law Definition of Property – Cont.
• Therefore, in the common law sense, property relationships are
defined by recognised control or dominance over things.
• The stronger the control, the more protected an interest would be.
• At this stage, think of someone who merely holds property in place of
someone vs someone who has bought the item? Who has more
control and who would be given more protection? If Zodwa gives you
her bag to hold for her, would you be able to sell the bag?
• Think back to why this would be in terms of the concepts discussed
above
The Common Law Definition of Property – Cont.
• The reasoning behind the preceding discussion can be found in cases
such as Ex Parte Geldenhuys 1926 OPD 155 (PS you will have to learn
to love this case because this is not the last encounter you will have
with it  )
• In that judgment, De Villiers JP defined a real interest or right in
property as something which constitutes a “subtraction from the
dominium”.
• The way De Villiers set it out, there is clearly a hierarchy depending on
how much is subtracted from the dominium.
The Common Law Definition of Property – Cont.
Here is an example of how the hierarchy would work out ( note just an
example)
Ownership
Lease
Poss
essi
on
The Common Law Definition of Property – Cont.
• In a simplistic sense and from what we have seen thus far, we can
define property as a ‘legally recognised interest which entitles a
person to a level of control over a thing.’
• Please note that such a definition is overly simplistic and misses quite
a bit but it gives you an idea.
• Also note that it is a nefariously difficult concept to define property at
the common law ( or indeed elsewhere)
Common Law Definition of a Res/Thing : 5
Characteristics
• Corporeality
• Use and Value
• Impersonal nature
• Appropriability
• Independence
Common Law Definition of a Res/Thing
• Before we continue, it is important to flag that there are two schools
of thought on whether all five of these need to be present to define a
thing as a thing.
• The one follows a strict approach in requiring all five to be present.
Proponents include Van der Merwe
• The other follows a looser or a broad approach. Proponents here
include Silberberg
Common Law Definition of a Res/Thing -Corporeality
• Corporeality refers to something that is tangible, can be touched ,
can be felt or perceived by the five senses. Examples include cars,
watches etc.
• Incorporeality refers to the opposite of a corporeal as it usually
cannot be touched or felt. Think of property rights, intellectual
property rights etc.
• Discuss why there is tension in recognising incorporeal property as
property in the traditional sense? Is your fibre line property?
Common Law Definition of a Res/Thing –Use and Value
• Here we are concerned with some sense of economic value or
consideration, but it is important to prefix that this largely depends on
the context.
• In other words, something may have value in some context to
someone and be of no value to another. A collection of pens may well
be trivial and of no economic value to someone but to another it
does. The text refers to dead leaves as another example.
Proprietary Relationships in Property Law
Property

Rights Possession

Limited Real Personal

Real Rights
Rights Rights
Content of Ownership
• Depends on role and function ownership plays in in a context and the
legal system therein
• Apartheid thus played a large role in defining the content of
ownership – consider the limitations faced during Apartheid in
ownership by confining it to certain race groups etc.
• SA’s origins of ownership can be traced back to the Roman Dutch law
and the Pandectist movement (German Legal scholars)
• Ownership is captured in the maxim plena in re potestas literally
meaning, full power in the matter or in this context, the thing
Content of Ownership
Plena in re potestas also demonstrates the following:
1. The owner has power to do what they want with their property
2. This is subject to the limits of the law
3. Ownership is an extensive legal relationship between a person and
property
4. Ownership has limitations by law or the exercise of other people’s
own ownership rights
Constitutional Vision for Property
• In this regard, study the following cases to understand how the
Constitutional Court perceives property in light of the Constitution:
-Jordaan v City of Tshwane Metropolitan Municipality 2017 (6) SA 287
(CC)
- Daniels v Scribante 2017 (8) BCLR 949 (CC)
Defining Ownership
• Gien v Gien : “ Most complete right a legal subject can have in
relation to a thing”
• This is connected to the nemo plus iuris ad atum transfere poteste
quam pose haberet rule. How?
• Ownership can be limited by subjective rights of other persons and by
the rules of law
Forms of Ownership
• The Common law conceives of two forms of ownership –
freehold/individual title and co-ownership.
Forms of
Ownership

Co-
Freehold
ownership

Bound Free
Individual/ Freehold Title
• Vests in one person only
• Sum total of entitlements in relation to the property is given to this
person subject to statutory and other limitations
• Also referred to as freehold title
Co-Ownership/Joint Title /Ownership In Common
• Generally, means that there is more than one person owning the
property at any given time
• In other words, each co-owner has the right to a share in the entire
property. It is one ownership which vests in several persons.
• The common law has two forms – free and bound but there is also a
set of statutory forms which we will consider in detail later
• Each owner does not own a specific part or piece of a thing. Instead,
they have an interest which is an undivided share
• Thus, they have a proportion of the ownership interest
Co-Ownership/Joint Title /Ownership In Common
• Property need not be owned in equal shares. Thus, Ben10 can have 30
%, Casper 50% and Kendrick 20% in their ownership shares of the
same property. Similarly, Sim Dope and Phala Phala can have 50% each
in shares of their common owned property. Both scenarios present
joint title/ownership in common/ co-ownership relations.
• The nature and extent of the interest by each c0-owner becomes their
undivided share in the property.
• Remember, as I emphasized, the focal point is the interests they have
in the property and not the property itself hence co-ownership does
not mean one person owns the bathroom, the other
the jacuzzi etc.
Co-Ownership/Joint Title /Ownership In Common
• We can divide key elements in a co-ownership into two:
1. Undivided shared in property
2. The common (moveable or immovable) property
Co-Ownership/Joint Title /Ownership In Common
The common (moveable or immovable) property
• Legal acts affecting the commonly owned property must be done jointly
• The use of the property by each co-owner must be done reasonably done.
Reasonableness thus forms a vital part of the use of the common property.
• Reasonableness includes not prejudicing other co-owners.
• Infringing rights of others and unduly imposing burdens can also be seen as
unreasonable
• Importantly, here, is the case of Pretorius v Nefdt and Glas 1980 TS 854 .
Please note I have also attached a copy of the case for you to read.
Co-Ownership/Joint Title /Ownership In Common
Pretorius v Nefdt and Glas 1908
• In this case, Pretorius sought an interdict against Glas for two reasons: first,
to compel Glas to revoke his permission for Nefdt to transport lime over
the farm; and second, to prevent Glas from continuing his own lime
transportation activities.
• The court found that Glas's permission to Nefdt was an infringement of
Pretorius's rights and placed an unbearable burden on him.
• As a result, the interdict against Glas was granted successfully.
Co-Ownership/Joint Title /Ownership In Common
Pretorius v Nefdt and Glas 1908
• Pretorius argued that Glas's permission to Nefdt to transport lime across
the farm was a violation of his co-ownership rights.
• However, the court noted that there is no legal authority to support the
idea that a co-owner's use of a road is restricted to the purpose of the farm
over which the road passes.
• Therefore, the court ruled in favor of Glas on this issue essentially based on
the concept of reasonableness.
Co-Ownership/Joint Title /Ownership In Common
• If the use of the property is not reasonable, it can lead to a court
awarding damages.
• All co-owners contribute to maintenance of the property
proportionately to their undivided shares
• Generally, profits and fruits (or benefits) are shared proportionally
Co-Ownership/Joint Title /Ownership In Common
• Altering the fundamental nature of the property or its use requires
consent of the other co-owner(s)
• While a co-owner is free to alienate its share in the property without
the cooperation of the other co-owners, all co-owners must give
permission before the property can be alienated. (See Ex Parte
Menzies et Uxor [1993] 4 All SA 455 (C) ; Coetzee v Coetzee [2006] JOL
36545 (WCC) NB not to be confused with the other 2016 Coetzee
case. Also see Van der Merwe v Van Wyk 1921 (EDC) 298.)
Co-Ownership/Joint Title /Ownership In Common
The Undivided Co-ownership Share
• It is important to differentiate between a share in a property and the
property itself.
• The share represents an individual's interest in the property.
• However, an equal distribution of shares does not necessarily mean that
the property can be divided equally as well.
• To avoid any disputes regarding the usage and purpose of the property, it is
recommended that the parties involved create agreements that detail
these aspects. These agreements can help to clarify expectations and
prevent any misunderstandings or disagreements in the future.
Bound Co-ownership
• This is co-ownership that is as a result of pre-existing relationships like
marriage in community of property.
• The co-ownership here, is thus an incident of the underlying relationship. If
there was no underlying relationship, this type of co-ownership would not
exist.
• The parties are bound by the underlying relationship
• Typically, this includes partnerships, non-universal associations and
marriages in community of property.
• The use of the property is determined largely by the
underlying relationship.
Bound Co-ownership
• Alienation of property is not possible without consent of the co-owner.
• Think for example of a house that forms part of the estate in a marriage in
community of property. Spouse A (let’s call him Boo) cannot decide
unilaterally to alienate or sell the property without the consent of Spouse B
(let’s call her Boo Boo).
• This also goes to the alienation of the shares or interest
• Generally, the underlying relationship needs to be terminated before the
division of the property is possible. Ostensibly, the end of the underlying
relationship, necessitates an end to the co-ownership relationship here.
Free Co-ownership
• Relationship here is created by contract specifically for a co-ownership
agreement. Unlike bound co-ownership, there is no underlying
relationship.
• Consequently, alienation of shares can take place independently of other
co-owners
• They can also terminate their coownership unilaterally and freely.
• The joint exercise of entitlements is not determined by an underlying legal
relationship between the parties.
• When disagreements about use arise, co-owners must then use their
things/property reasonably in accordance with the proportion of their
share/interest.
Free Co-ownership
• The distinction between free and bound co-ownership is best seen in the case
of Oblowitz v Oblowitz where the court juxtaposed free co-ownership and
partnerships ( a typical bound co-ownership)
1. “Co-ownership is not necessarily the result of agreement while partnership is.
2. Co-ownership does not necessarily involve community of profit and loss while
partnership does.
3. One co-owner can without the consent of the others alienate his interest in
the property jointly owned, whereas a partner cannot.
4. One co-owner is not as such the agent of the others, whereas a partner is.
5. Co-ownership need not exist for the sake of gain or profit, whereas that
element is fundamental to the legal conception of a partnership”
Limitations to Co-ownership
Study the case of Coetzee v Coetzee 2016 ZAWCHC 115, a case which dealt
with whether co-owners of agricultural land can claim division of the land as
part of ‘actio communi dividundo’ in light of The Subdivision of Agricultural
Land Act which prohibits any subdivision of agricultural land prior
to Ministerial consent.

- What are the facts of the case?

- What is the principle we can get from the case?
- What does this mean for the general limitations to co-ownership?
 Remedies
• If co-owners cannot come to an agreement regarding the sale of a property, one
co-owner may choose to claim the subdivision of the property according to their
share.
• Once the property is subdivided, the co-owner can sell their divided share.
However, it is important to note that subdivision may not always be feasible or
practical.
• A co-owner who seeks to divide a property can also utilize the legal action of actio
communi dividundo to achieve this goal. In cases where co-owners are unable to
come to a consensus regarding the division of the property, the court may make a
decision.
• The court has significant leeway in determining the appropriate course of action to
end joint ownership of immovable property through the actio communi dividundo.
 Remedies
• In situations where it is not feasible or practical to physically divide a property (such
as when the property is indivisible), the court has the authority to order the
property to be sold, and the proceeds to be divided between co-owners based on
their respective shares.
• Alternatively, the court may order one co-owner to compensate the other co-
owner in proportion to their shares, after a property valuation has taken place.
( This was specifically set out in Claassen v Quenstedt [2014] ZAECPEHC 18)
• This ensures that each co-owner is fairly compensated for their share of the
property. ( See the case of Kruger v Terblanche 1979 (4) SA 38 (T).)
Termination of a Co-ownership
The principles outlined in the case of Van Sittert v Knobel [2018] ZACPPHC 566 at
paragraph 14 state that the following principles must be met in order for co-ownership
to be terminated.
1. Co-ownership must exist.
2. The other co-owners must refuse to agree to the termination of co-ownership, the
method of termination, or they may refuse to comply with the terms of a
termination agreement.
3. There must be facts that allow the court to use its discretion in determining the
appropriate way to terminate joint ownership.
4. The court will seek to follow a fair and equitable method that takes into account the
interests of all parties involved.
5. This may include a public auction of the property, as was the case in Estate Rother v
Estate Sanding 1943 AD 47.