Original Aquisition (Inaedifactio)

Question 1

List the various forms of original acquisition

Answer 1

Appropriation
Accession
Manufacture
Mixing
Acquisition of fruits
Expropriation
Prescription
Treasure trove

Question 2

what is original aquisition?

Answer 2

This is a unilateral mode for acquiring ownership, which takes place without the co-operation of the affected property holder and may even be against such person’s will.

Question 3

Vesting of ownership ito original acquisition

Answer 3

Ownership vests in the acquiror by operation of law the moment all the requirements for the
specific method of original acquisition are satisfied.

Question 4

accession as a form of original acquisition

Answer 4

Occurs when two or more separate entities (things) are joined by natural or artificial means, and form another composite thing or entity.

Question 5

What happens to the accessory upon accession?

Answer 5

The accessory loses its legal identity upon accession, implying that ownership of the thing as a separate entity is terminated.

Question 6

How is the previous owner affected when the new owner acquires the thing through accession?

Answer 6

The previous owner of the accessory loses ownership by operation of aw, and without his or her co-operation (and often against his or her will), but may claim compensation.

Therefore, it is for these reasons that the accession is regard as one of the original methods of acquisition of ownership.

Question 7

identity of the thing after the process of accession has taken place

Answer 7

The joined thing retains its factual identity.

Question 8

How is accession determined?

Answer 8

Accession is determined objectively (a subjective agreement cannot override the objective facts)

Question 9

Three types of accession

Answer 9

movable to movable,

immovable to immovable,

movable to immovable,

Question 10

ACCESSION OF MOVABLES TO IMMOVABLE PROPERTY

Answer 10

What is attached to the land becomes part of the soil as an accessory.
Human effort is nearly always involved in joining movable things to immovable property.

Question 11

Accession of movables to land takes the following two forms:

Answer 11

Planting and sowing
Building (inaedificatio)

Question 12

How does Inaedification occur?

Answer 12

Building (inaedificatio) occurs when a movable is attached or affixed to an immovable through human agency, this, in such a way that it becomes an accessory to land.

Question 13

Example of movables being affixed to immovable include

Answer 13

Walls, buildings, and pumps built on or into land

Question 14

What’s the legal effect of attaching the moveable thing to the immoveable?

Answer 14

the owner of the movable loses ownership of the thing by operation of law given that the thing has been incorporated into the thing to such an extent that it no longer enjoys separate legal existence.

The immovable, in turn, is extended by the incorporation of the movable into it.

Question 15

When does the question of inaedification become relevant?

Answer 15

when the property of a third party is attached to the land.

Question 16

MCDONALD V RADIN

Answer 16

In this case (Supreme Court of appeal), the court laid down the following three factors to be considered when answering the question whether the movable has become so attached to the immovable that the owner of the land is now the owner of the movable.

Question 17

3 factors in MCDONALD V RADIN

Answer 17

1. The nature and purpose of the movable thing [objective intention]
2. Manner and degree of annexation [objective intention]
3. The intention of the annexure [subjective test]

Question 18

what does the The nature and purpose of the movable thing factor entail?

Answer 18

The thing must be of such a nature that it can be permanently attached and the purpose for the attachment must be of use to the land on a permanent basis.

Question 19

Examples of movables that permanently serve the land

Answer 19

include roof tiles fitted and doors attached to the wall.

Question 20

Why are these movables considered as permanently serving the land even though they may still be removed without damages?

Answer 20

Even though these can be easily removed without damage, their purpose is to serve the immovable property permanently. Land is always the principal thing.

Question 21

what does the Manner and degree of annexation entail?

Answer 21

This factor concerns how the movable object has been attached to the land.

Question 22

Standard Vacuum Refining v Durban City Council

Answer 22

If the manner or degree of attachment shows permanence, there is, therefore, no need to check the subjective intention of the annexure

Question 22

Can the accessory thing be removed without damage to the principal thing?

Answer 22

If the movable thing can be removed with relative ease, then the inaedificatio did not take place.
The removability of this aspect relates to the requirement that the accessory thing must be attached as firmly as the soil or as firmly as a nail to the land.

Question 23

Would removing the movable from the land result in substantial damage to either the movable or the land?

Answer 23

If YES, then inaedificatio has taken place.
Example; bricks which have been built into the land.

Question 24

What is irrelevant when to consider under the “Manner and degree of annexation” factor?

Answer 24

It is irrelevant whether the movable has been attached to the land through artificial means or through the sheer weight of the object.

Question 25

What would be an example of movables that have not acceded to the land?

Answer 25

A movable ‘wooden house’

Question 26

When to use the “The intention of the annexure” factor

Answer 26

If a clear answer is not determined from this second factor, the analysis moves to factor three.

Question 27

What does “The intention of the annexure” entail?

Answer 27

Here we look at the intention of the person at the time of the attachment

Question 28

What happens under the intention of the annexure if the person and the owner of the movable property be two different people?

Answer 28

it is the intention of the owner that would be decisive.

Question 29

NB question to consider under the “the intention of the annexure” factor

Answer 29

The question is whether the annexure or the owner intended the movable to form part of the land permanently?
If there was such an intention, then inaedificatio took place.
If there was no intention, then the movable still enjoys a separate legal identity.

Question 30

Melcorp SA v Joint Municipal Pension Fund 1980

Answer 30

a lift in a building on rental till the end of a contract does not fall part of the building = subjective intention

Question 31

Theatre Investments v Butcher Brothers 1978

Answer 31

a lease of a theatre erected on the property for a period of 10 years = objective and subjective intention are on equal footing.

Question 32

What else does the intention of the annexure factor entail?

Answer 32

Reservation of ownership.

Question 33

USS Graphics (Pty) Ltd and Others v Urban Print Factory

Answer 33

the dispute centered around ownership and the return of various items allegedly in the possession of the respondents. Key items involved were:

• Mitsubishi Printing Machine
• Compressor
• Iveco Delivery Vehicle and Forklift

The court addressed these issues, and while the Iveco’s lien claim was considered, the focus remained on the Mitsubishi and the compressor.