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PVL3701 - Property Law > Chapter 3 > Flashcards

Chapter 3 Flashcards

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1
Q

What are the methods of acquiring ownership?

A
  1. Original method

2. Derivative method

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2
Q

Define original method of acquiring ownership.

A

Original methods are used when there is NO cooperation from a predecessor in title.

This type of ownership is not limited to res nullius but more also occur in cases of accession, prescription and expropriation.

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3
Q

Define derivative method of acquiring ownership.

A

Derivative method of acquiring ownership occurs when there IS cooperation with the predecessor in title. The rights which the transferee obtains is derived from the former owner. ‘No-one can transfer more rights to another than he has himself’.

The right is transferred to the new owner with the advantages and disadvantages attached to the right.

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4
Q

What are the types of original method of acquisition of ownership?

A
  1. Appropriation
  2. Accession
  3. Mixing of solids/mingling of fluids
  4. Manufacturing
  5. Acquisition of fruits
  6. Treasure trove
  7. Expropriation
  8. Prescription
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5
Q

Define appropriation.

A

The unilateral taking of physical control of a thing which does not belong to anyone (res nullius), but is within the sphere of the law (res in commercio) with the intention of becoming its owner.

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6
Q

Does the taking of physical control of a thing in appropriation have to be lawful?

A

No. If the appropriation is unlawful the perpetrator commits a crime but he/she nevertheless becomes the owner by appropriation.

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7
Q

Expand on the concept of res nullius.

A

Res nullius are things that belong to no one. This includes:

  1. All creatures in the natural state or when they have reverted to their former wild state.
  2. Products of the sea (e.g seaweed, shells, fish)
  3. Res derelictae (things which a former owner has abandoned with the intention of ceasing to be their owner
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8
Q

Define accession. (4 marks)

A

This is an original method of acquiring ownership, which takes place where an accessory thing becomes merged with a principal thing with the result that the two things become one entity. The accessory thing losses its independence and becomes part of the principal thing. The owner of the principal thing becomes the owner of the composite thing.

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9
Q

What are the different forms of accession?

A
  1. Accession of immovables to immovables
  2. Accession of movables to immovables
  3. Accession of movables to movables
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10
Q

Briefly discuss the different types of immovable to immovable accession.

A
  1. Invisible accretion (alluvio) - gradual and imperceptible of land to land through the action of water where the natural boundary of the property is a river or the sea.
  2. Visible accretion (avulsio) - extent of land is increased by the sudden addition of land which has by violent natural causes been dislodged elsewhere.
  3. Island arising from riverbed - when an island is formed in a river by the natural action of water in such a way that the island is divided proportionately and acquired by the riparian owners.
  4. Dry riverbed - in Roman Dutch law the concept of accessio to a dry riverbed that had changed its course.
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11
Q

Discuss the types of immovable to immovable accession.

A
  1. Planting and sowing - growing things accede to land and becoming the property of the owner of the land. Accession takes place as soon as the plants take root in the soil. This is because the plant obtain water and nourishment from the soil. Exceptions - lease contract (Gore v Parvatas)
  2. Building - movable thing (accessory thing) becomes attached to the land (principal thing) in such a manner that it losses its independence and forms an entity with the land, thereby becoming part of the landowner’s land.
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12
Q

Discuss the 3 cases which dealt with building as a form of accession.

A
  1. MacDonald v Radin
  2. Theatre Investments v Butcher Brothers
  3. Van Wezel v Van Wezel Trustees
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13
Q

State the 3 criteria used by courts to determine whether whether a movable thing is attached to an immovable thing by means of accession in such a way that it becomes part of the immovable thing.

A
  1. Nature and purpose of the thing.
  2. Manner and degree of attachment.
  3. Intention of the person annexing it or the intention of the owner the movable thing.
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14
Q

In accession as an original method of acquiring ownership, what is the position of the owner of the attached accessory thing?

A
  1. Lessee - before termination of the lease, the lessee has a right to remove improvements which can be dismantled without causing damage to property
  2. Bona fide attached
  3. Mala fide attached
  4. Estoppel
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15
Q

Define accession of movables to movables.

A

Definition - original method of acquiring ownership in terms of an accessory movable thing becomes attached to a principal movable in such a way that a single entity is formed. The accessory thing losses its independence and the owner of the principal thing becomes the owner of the composite thing.

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16
Q

What is the essential criteria for accession of an accessory movable to a principal movable?

A
  1. The accessory thing and the principal thing should be clearly distinguishable.
  2. The combination should be difficult to separate.
  3. It should not amount to manufacture.
17
Q

Define mixing of solids (commixtio) and mingling of fluids (confusio).

A

An original method of acquiring ownership in which movable things belonging to different persons are mixed together without he consent of the owners, in such away that the movables cannot be separated. The mixture becomes the joint property of the former owners in proportion to the value of the things included.

18
Q

Differentiate between accession, mixing/mingling and manufacturing.

A
  1. Accession of movable to movable - an accessory thing is attached to a principal thing in such a way that the accessory thing losses its independence.
  2. Mixing/mingling - movables belonging to different persons are mixed together without the consent of the owners in such a way that it is difficult to separate them.
  3. Manufacturing - a completely new thing is formed through human intervention.
19
Q

Define manufacturing as an original method of acquiring ownership.

A

The unauthorised production of a new thing using a thing that belongs to another.

20
Q

Define the acquisition of fruits as an original method of acquiring ownership.

A

Acquisition of fruits occurs when a person who is entitled to separate or gather fruits does so.

Before separation the fruits are accessory to the principal thing, and therefore the property of the owner of the principal thing. Upon separation the fruits become independent things.

21
Q

Classify the types of fruits.

A
  1. Natural fruits
    - Hanging fruits (fructus pendentes)
    - Separated fruits (fructus separati)
    - Gathered fruits (fructus percepti)
  2. Civil fruits
    - Rent on immovables
    - Interest on capital
    - Profits from a business or other ventures
    - Dividends on shares
22
Q

Define expropriation.

A

This is an original method of acquiring ownership where the State acquires movable or immovable things without the consent of the owner against payment.

S25 of the Constitution empowers the State to expropriate property for public purpose and against payment of compensation.

23
Q

Define acquisitive prescription.

A

An original method of acquiring ownership where a person who openly possess (controls) a thing as if he/she is the owner of the thing for an uninterrupted period of 30 years becomes its owner.

24
Q

Discuss the legislation that speaks to prescription.

A

Prescription Act 18 s2(1) - acquisitive prescription is the acquisition of ownership by the possession of another person’s movable or immovable property… continuously for thirty years,

Prescription Act 68 s1 - a person shall by prescription become the owner of a thing which he has possessed openly and as if he were the owner thereof for an uninterrupted period of thirty years or for a period which together with any periods for which such thing was so possessed by his predecessors in title, constitutes an uninterrupted period of thirty years.

25
Q

What are the elements in control - in terms of the definition of acquisitive prescription?

A 
Physical control  (corpus)
Mental (animus)
26
Q

What is the test for physical control?

A

Whether the reasonable person can infer from the circumstances that he/she held the property as if he/she were the owner.

27
Q

Discuss the concept of “openly” under the theme acquisitive prescription.

A

There are 3 requirements:

  • Not by force (nec vi)
  • Not secretly (nec clam)
  • Not on sufferance (nec precario)

PVL3701 - Property Law (2 decks)

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