Topic 2: Rights in Property

Question 1

Real Right

Answer 1

▫ Establishes a direct relationship between a person and the property
▫ Rights over objects that are enforceable against the whole world
▫ Must be registered ito the Deeds Registry Act
▫ Automatically enforceable against a successor in title
▫ Ownership = most absolute right + gets most protectionOwnership = most absolute right + gets most protection

Question 2

Personal Right

Answer 2

▫ Establishes relationship between one person and another person in respect of a delictual or contractual claim called performance
▫ Right in relation to a specific person that is enforceable against a specific person or group
▫ Some personal rights can be registered, but it does not change the nature of that right
▫ Transferred by way of cession and a successor in title is not automatically bound

Question 3

Two Approaches to the distintion between real and personal rights

Answer 3

1. Theoretical Approach
2. Courts’ Approach

Question 4

Theoretical Approach

Answer 4

Classic Theory - focuses on the object to which the right relates and the relationship the person has with that object

Personalist Theory - looks at who the right operates against. Real rights are absolute since it can be enforced against the whole world, while personal rights are relative

Question 5

Court’s Approach

Answer 5

Two-fold test to determine if a right is real or personal:
1. Was the right intended to bind successors in title?
2. Does the right constitute a subtraction from the dominium? (ownership entitlements are diminished by granting the right)

If yes to both, the right is real.

Question 6

Courts’ Approach Cases

Answer 6

• Ex Parte Geldenhuys
• Lorentz v Melle
• Pearly Beach Trust v Registrar of Deeds
• Cape Explosive Works Ltd v Denel (pty) Ltd
• Willow Waters Homeowners Association v Koka

Question 7

Ex Parte Geldenhuys

Question 8

Lorentz v Melle

Question 9

Pearly Beach Trust v Registrar of Deeds

Question 10

Cape Explosive Works v Denel

Question 11

Willow Waters Homeowners Association v Koka

Question 12

The Publicity Principle

Answer 12

Applies only to real rights, because they are enforceable against the whole world
Thus, there is a need for publicity

Moveables - Publicity is served by possession and delivery at transfer. Rebuttable presumption that the person in possession is the owner

Land - Publicity achieved by registering real right in the Deeds Registry. Everyone is deemed to have knowledge of these registered real rights, and this is known as the doctrine of constructive knowledge (not actual knowledge, just an assumption)

Question 13

The Doctrine of Notice

Answer 13

Protects the holder of an unregistered real right where someone has the knowledge of the potential real right.

General principle - no one can derive benefit from their own bad faith. No one may defeat another’s protential real right for their own benefit is they know of its existence.
*Only applies where real right is acquired against payment of consideration

Question 14

Three requirements for the Doctrine of Notice

Answer 14

1. A prior personal right that would lead to the creation of a real right (gives rise to the acquisition of a thing)
2. The subsequent acquirer of the real right must infringe upon the pre-existing personal right and it must amount to wrongful action
3. The acquirer of the real right must have actual knowledge of the existence of the prior personal right. If it was obvious, the new owner will be deemed to have knowledge. Knowledge must exist at the time of transfer.