limitations of ownership

Question 1

explain S25

Answer 1

• no one may be arbitrarily deprived of prop
• usually applies to citizen relationship with state
• BoR vertically applied

Question 2

explain S26

Answer 2

• no one may be evicted without a court order
• relationships between private individuals
• BoR horizontally applied

Question 3

S25 protects

Answer 3

• private property against impermissible impositions
• legit steps to transform existing patterns of priv prop
• i,e land reform

Question 4

expropriation

Answer 4

• state ability
• take private property
• without consent
• against payment of compensation

Question 5

deprivations must

Answer 5

• 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

Question 6

neighbor law can be divided into

Answer 6

1. nuisance

2. traditional rules

Question 7

2 clashing principles nuisance

Answer 7

1. owner owns everything from heaven to hell

2. use in such a way that does not burden others

Question 8

what is the overarching standard of nuisance

Answer 8

• reasonableness
• objective
• determines if strict or wide sense

Question 9

overarching test

Answer 9

• conduct in question
• tolerated and socially accepted
• prevailing views of community

Question 10

remedies

Answer 10

• interdict : unreasonable conduct

- damages

Question 11

nuisance in a narrow sense occurs

Answer 11

• neighbor right of personality infringed

- smell , noise

Question 12

nuisance in narrow sense test

Answer 12

whether conduct complained of is reasonable and tolerated

• objective
• BoP
• factors depend on facts

Question 13

nuisance in the wide sense

Answer 13

• results in damage to the prop
• abnormal use of land
• infringes on neighbours entitlements

Question 14

test for wide sense

Answer 14

• use of land objectively assessed to determine whether it is reasonable
• matter examined from both sides

Question 15

nuisance in a wide sense factors

Answer 15

• use ordinary and expected in location and circumstances

- sensitivity of neighbours activities

Question 16

Lateral surface support

Answer 16

• strict liability for damages caused
• even in absence of fault
• applies to land in natural state
• governed by building regulations

Question 17

Encroachment buildings

Answer 17

• owner claim removal
• own claim ejectment against compensation
• court order transfer of land + compensation
• owner claim encroacher take transfer of land + compensation

Question 18

encroachment of trees

Answer 18

• ask neighbour to remove

- go to court for order to make neighbour remove or remove by self

Question 19

encroachment of roots

Answer 19

• a neighbor can remove roots encroaching on land

- uncertain whether they can compel owner of plant to do so

Question 20

surface water

Answer 20

• 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

Question 21

surface water rural

Answer 21

• owner can claim removal of any works causing interference as well as damages sustained

Question 22

surface water urban tenements

Answer 22

• water should be diverted to nearest street
• if possible diverted to lower tenement
• all reasonable precautions taken to prevent damage

Question 23

party wall fence

Answer 23

• 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

Question 24

elimination of danger

Answer 24

• owner has duty to remove danger from property i.e storing poisonous substances

Question 25

Laskey factors

Answer 25

- type of noise - degree of persistence - locality - time - character of area - social utility

Question 26

Laskey come to nuisance

Answer 26

- 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

Question 27

Laskey held

Answer 27

- locality not decisive - interdict to soundproof - suspended to give them time

Question 28

Laskey considered

Answer 28

- use of theatre reasonable in circumstances | - what a reasonable person could tolerate

Question 29

Allaclas

Answer 29

- normal use of prop severely affected - potential danger = restrictment of enjoyment - interdict use of hold - suspend to erect preventative barrier

Question 30

Gien ownership

Answer 30

- most Complete RR - exists within bounds of law - i.e neighbor law

Question 31

Gien neighbor law court said

Answer 31

- exercise entitlements in a way that does not impede that of your neighbor - exceeded when use property unreasonably - unreasonable determined on objective analysis

Question 32

Gien factors

Answer 32

- locality - materiality - personality of palintiff - motive - proportionality - public interest and social utility

Question 33

Gien held

Answer 33

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