Topic 3: Ownership Flashcards
Ownership: Gien v Gien
- The most complete real right a person can have in regard to a thing
- A person can do on and with his property as he likes
- Freedom is not unlimited
- Restrictions:
1. Objective law
2. Other people’s rights
3. Constitution - Entitlements:
1.Ius utendi - right to use
2.Ius possidendi - right to possess
3.Ius fruendi - right to collect and bear fruits from property
4.Ius dispondendi - right to dispose of property
Forms of Ownership
- Individual ownership
- Co-ownership
- Alternatice forms of ownership
Individual ownership
- Vests in only one person, single owner has the sum total of entitlements.
- Can still be affected by legislative measures (especially in land reform context).
Co-ownership
- Simultaneous ownership in the same property by more than one person.
Each owner acquires an undivided co-ownership share in the property.
○ Derived from common law
▪ Bound (tied) co-ownership
▪ Free co-ownership
○ Statutory co-ownership
Bound (tied) co-ownership
→ Underlying relationship binds co-owners (such as marriage, partnership or membership contract).
→ This relationship determines exercise of entitlements.
Cannot unilaterally alienate/burden undivided co-ownership share as long as the underlying relationship is
intact.
→ Cannot be terminated unilaterally
Free co-ownership
→ Not bound by underlying relationship, co-ownership is the only relevant relationship.
→ Can arrange entitlements via contract.
→ Can alienate/burden undivided co-ownership share in the property independently.
→ Can terminate unilaterally.
Types of alternative forms of ownership
- Sectional title schemes
- Share-block schemes
- Time-share schemes
- Communal property associations
- Indigenous Land Rights
Constitutional limitations on ownership
S25 The constitutional property clause (the right not to be arbitrarily deprived of property). Both
protects and prescribes limits within which ownership may be limited. All limitations must be
constitutionally compliant.
* S25(1) - no one may be deprived of property except ito law of general application, and no law may permit arbitrary deprivation of property
S26 The right not to be evicted from one’s home
Public law limitations on ownership
Planning and environmental law:
1. Rural land
* Environmental Conservation Act
* National Environmental Management Act
- Urban land
* National Building Regulations and Building Standards Act
* Lester v Ndlambe Municipality - building demolished because ti was erected without approved building plans
Private law limitations (Neighbour law) on Ownership
- Nuisance
- Encroachment
- Natural flow of water
- Surface and lateral support
Nuisance Cases
- Gien v Gien
- Allaclas Investments v Milnerton Golf Club
- Laskey v Showzone
- Ellaurie v Madrasah Taleemuddeen Islamic Institute
Gien v Gien
- Reasonableness test
- Asks: Whether the ordinary person in the position of the plaintiff would have tolerated the interference
- Factors to be considered:
1. Locality and use of the property
2. The gravity, extent and duration of the interference
3. The personality / sensitivity of the person affected
4. The utility of the activity for the community
5. The social and economic customs in the community
6. The practicality of preventing the alleged nuisance
7. Whether there are less restrictive means to minimise the discomfort / harm
Allaclas Investments v Milnerton Golf Club
Facts:
* Property located next to 6th hole of a golf course
* Frequently hit by misdirected golf balls, making garden unusable
* Protective net was installed
Court:
* Some interverence was tolerable
* But, amount was excessive and unreasonable
* Buyer knew the property was next to course, but did not know the hole was badly designed
* Court issued the interdict to prohibit the use of the 6th hole
Laskey v Showzone
Facts:
* Applicants lived in the same building as a theatre restaurant
* Noise complaint due to loud music
* Noise regularly and during late hours
* Soundproofing was unsuitable and ineffective
Court considered:
* Type and persistence of the noise
* Locality - residential area
* Time - late at night
* Found actionable nuisance existed due to:
* Significant increase in noise levels
* Regular and ongoing nature of the disturbance
* Availability of reasonable measures to reduce impact
Interdict was grated
Ellaurie v Madrasah Taleemuddeen Islamic Institute
- Man complained about the noise from Islamic call to prayer
- SCA - he must endure it
- Property rights may conflict with other fundamental human rights
