Module 2- Real Rights, Limited Real Rights & Personal Rights

Question 0

What are ownership real rights?

Answer 0

We say that ownership is the most complete real right and is the only real right held in one’s own property (ius in re propria).

Question 1

What are the two types of Real Rights?

Answer 1

Real Rights are either:

1) Ownership; or
2) Limited Real rights.

Question 2

What is a Limited Real right?

Answer 2

A limited real right is a real right held by a non-owner in the property owned by another and is thus limited (ius in re aliena).

Question 3

What are the various categories of Limited Real rights?

Answer 3

1) Servitudes;
2) Real security rights;
3) Other (quai-Servitudes).

Question 4

What is the distinction between Real Rights and Personal Rights?

Answer 4

Real rights should be distinguished from personal rights. Personal rights are governed by the Law of Obligations (ie Law of Contract and Law of Delict).

Personal rights are established and protected in different ways.

Question 5

Where rights are created in terms of a contract or a will, why is it sometimes difficult to distinguish between a real right and a personal right?

Answer 5

In this context it is important to determine whether the right is a limited real right (which can be registered) or a personal right (which, in principle, is not registrable).

Question 6

What does s63(1) of the Deeds Registeries Act state?

Answer 6

In terms of the Deeds Registries Act s 63(1) ONLY real rights in immovable property can be registered. Registration is important for the acquisition of a real right in an immovable (unless acquired by original acquisition).

Question 7

What does the whole of s63 of the Deeds Registries Act state?

Answer 7

63 Restriction on registration of rights in immovable property

(1) No deed, or condition in a deed, purporting to create or embodying any personal right, and no condition which does not restrict the exercise of any right of ownership in respect of immovable property, shall be capable of registration: Provided that a deed containing such a condition as aforesaid may be registered if, in the opinion of the registrar, such condition is complementary or otherwise ancillary to a registrable condition or right contained or conferred in such deed.
(2) The provisions of subsection (1) shall not apply with reference to any condition in a mortgage bond or lease or in a deed referred to in section 3 (1) (c) or (p).

Question 8

Is there a closed list of real rights in South Africa?

Answer 8

In Roman law there was a closed list (numerus clausus) of real rights. In South Africa we do not have such a numerus clausus. In South Africa we use the ‘subtraction from dominium’ test to determine whether or not a right created in a will or contract is a real right or a creditor’s right.

Question 9

What personalist theory’s distinction between a Real Right and a Personal Right?

Answer 9

The personalist theory looks at persons against whom a right operates.

If the right is absolute and enforceable against the world at large, it is a real right.

A personal right is only relative because it can only be enforced against a specific person (the other party to the obligation).

Question 10

What are the various problems with the personalist theory’s distinction between a real right and a personal right?

Answer 10

There are various problems with this theory, listed as follows:

• If you don’t come into contact with the holder of a real right, you are not obliged to not interfere with it. “The whole world” therefore only refers to people that actually can or does interfere with a real right.
• Real rights are not always absolute (eg. estoppel, alienation of a pledge object to bona fide third)
• Personal rights might be relative, but everyone must respect it.

Question 11

How does the classical theory distinguish between Real rights and Personal rights?

Answer 11

The classical theory refers to the classic distinction drawn in Roman law between real rights and personal rights: it looks at the object of the right. Real rights are concerned with the relationship between a person and a thing, while personal rights refer to the relationship between two persons (the object being a performance). Real rights confer a direct relationship between a person and a thing, where the holder of the right can control the thing without the co-operation of another person. Real rights binds a particular thing, a personal right binds a particular person.

Question 12

What criticism can be drawn against the classical theory’s distinction between real rights and personal rights?

Answer 12

Criticism can be summarized as follows:

• The characteristic of a thing as direct power over a thing does not logically stand opposed to a claim against a person (as in personal rights).
• Only the juristic fact of possession over a thing can be recognized, while there are often other ways of controlling an object that might not be in terms of a “right”.
• The right to dispose can be in terms of a real right, or a personal right, for instance. The distinction is often difficult to draw.

Question 13

What are the characteristics of a Real Right?

Answer 13

There are, however, certain basic characteristics of real rights. Bear in mind that this is very general.
• 1) The object of a real right is a corporeal thing.
• 2) A real right affords direct power with regard to the thing.
• 3) Real rights are in principle absolute and afford a so-called right of pursuit
(vindication).
• 4) Real rights afford the holder a preference in cases of insolvency.
• 5) The prior in tempore rule is applicable when there is a conflict between two real
rights.
• 6) Transfer of real rights must be accompanied by some form of publicity.
• 7) Real rights flow from juristic facts, and does not depend on an agreement.