limitations of ownership Flashcards
explain S25
- no one may be arbitrarily deprived of prop
- usually applies to citizen relationship with state
- BoR vertically applied
explain S26
- no one may be evicted without a court order
- relationships between private individuals
- BoR horizontally applied
S25 protects
- private property against impermissible impositions
- legit steps to transform existing patterns of priv prop
- i,e land reform
expropriation
- state ability
- take private property
- without consent
- against payment of compensation
deprivations must
- be imposed in terms of law of general application
- not be arbitrary
- reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom
neighbor law can be divided into
- nuisance
2. traditional rules
2 clashing principles nuisance
- owner owns everything from heaven to hell
2. use in such a way that does not burden others
what is the overarching standard of nuisance
- reasonableness
- objective
- determines if strict or wide sense
overarching test
- conduct in question
- tolerated and socially accepted
- prevailing views of community
remedies
- interdict : unreasonable conduct
- damages
nuisance in a narrow sense occurs
- neighbor right of personality infringed
- smell , noise
nuisance in narrow sense test
whether conduct complained of is reasonable and tolerated
- objective
- BoP
- factors depend on facts
nuisance in the wide sense
- results in damage to the prop
- abnormal use of land
- infringes on neighbours entitlements
test for wide sense
- use of land objectively assessed to determine whether it is reasonable
- matter examined from both sides
nuisance in a wide sense factors
- use ordinary and expected in location and circumstances
- sensitivity of neighbours activities
Lateral surface support
- strict liability for damages caused
- even in absence of fault
- applies to land in natural state
- governed by building regulations
Encroachment buildings
- owner claim removal
- own claim ejectment against compensation
- court order transfer of land + compensation
- owner claim encroacher take transfer of land + compensation
encroachment of trees
- ask neighbour to remove
- go to court for order to make neighbour remove or remove by self
encroachment of roots
- a neighbor can remove roots encroaching on land
- uncertain whether they can compel owner of plant to do so
surface water
- every owner or land receive natural flow of water from adjoining land
- upper owner may not interfere with natural flow of water in manner prejudicial to lower owner
surface water rural
- owner can claim removal of any works causing interference as well as damages sustained
surface water urban tenements
- water should be diverted to nearest street
- if possible diverted to lower tenement
- all reasonable precautions taken to prevent damage
party wall fence
- own side of wall
- servitude of lateral support on other side
- no demolishment without consent unless fence to build brick wall
- both liable for maintenance
- refrain from affecting stability
- entitled to beautify section of wall
elimination of danger
- owner has duty to remove danger from property i.e storing poisonous substances
Laskey factors
- type of noise
- degree of persistence
- locality
- time
- character of area
- social utility
Laskey come to nuisance
- respondents argued that they came to nuisance bc moved to area that was night entertainement
- court rejected: make CBD inhabitable
- expectation to use property reasonably
- applicants did try protect themselves closed windows
Laskey held
- locality not decisive
- interdict to soundproof
- suspended to give them time
Laskey considered
- use of theatre reasonable in circumstances
- what a reasonable person could tolerate
Allaclas
- normal use of prop severely affected
- potential danger = restrictment of enjoyment
- interdict use of hold
- suspend to erect preventative barrier
Gien ownership
- most Complete RR
- exists within bounds of law
- i.e neighbor law
Gien neighbor law court said
- exercise entitlements in a way that does not impede that of your neighbor
- exceeded when use property unreasonably
- unreasonable determined on objective analysis
Gien factors
- locality
- materiality
- personality of palintiff
- motive
- proportionality
- public interest and social utility
Gien held
interfered with entitlements:
- farm in quiet area for livestock farming
- noise disturbed livestock and neighbors
- region not suited for veggie farming
- too drastic for small veggie patch
- not in public interest
- noise could be muffled without hampering
