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Pvl3701 Examinations 2023 October

The document discusses various aspects of property law, including ownership rights, nuisance, encroachment, and the legal processes involved in property transfer and eviction. It outlines the rights of neighbors regarding tree encroachment, the constitutional protection of property rights, and the procedures for transferring immovable property. Additionally, it covers legal remedies for unlawful occupation and the establishment of servitudes.

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Nonofo Mkhutshwa
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0% found this document useful (0 votes)
66 views6 pages

Pvl3701 Examinations 2023 October

The document discusses various aspects of property law, including ownership rights, nuisance, encroachment, and the legal processes involved in property transfer and eviction. It outlines the rights of neighbors regarding tree encroachment, the constitutional protection of property rights, and the procedures for transferring immovable property. Additionally, it covers legal remedies for unlawful occupation and the establishment of servitudes.

Uploaded by

Nonofo Mkhutshwa
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd
You are on page 1/ 6

STUDENT NUMBER: 00000

MODULE: PROPERTY LAW

MODULE CODE: PVL3701

EXAM PERIOD: OCTOBER/NOVEMBER 2023

DATE: 27TH OCTOBER 2023

NAME: NNNNNN

1
QUESTION 1.1
Ownership is ownership is the most complete real right that a person can have.
Ownership cabe either limited or r restricted by the law. In this case neighbour law
and the rights of others should also be considered. Nuisance in the narrow sense is
regulating this matter. Nuisance in the narrow sense occurs where a neighbour’s
right of personality or entitlement of use is infringed by, for example, noise or smell.
This infringement does not necessarily result in damage, but rather in a personality
infringement. The Pienaars can approach the court if Mr Nkosi refuses to listen to
them.for an order compelling Mr Nkosi to remove the branches as their right of
enjoying their home is disturbed by encroaching trees.(page 42, 48,52,53 of study
guide)
QUESTION1.2
According to encroachment law, If trees are planted so close to the boundary that
the branches encroach upon the neighbour’s land, the neighbour can request the
owner of the trees to remove the branches. If the owner refuses, the neighbour can
approach the court for an order compelling the owner to do so or the neighbour can
do it him or herself. The neighbour may not keep the branches, however, unless the
owner consents or fails to remove them within a reasonable time after demand. On
the given case the Pienaars may request Mr Nkosi to remove the branches but if he
refuses that is they should approach the court for court order compelling Mr Nkosi to
remove them. (page 52, 53 of study guide).
Question 1.3
The property clause in Section 25 of the Constitution protects the right to property
and provides for the circumstances under which deprivation and expropriation of
property can occur. Deprivation refers to the loss or removal of property rights, while
expropriation refers to the compulsory acquisition of property by the state for public
purposes. In the FNB decision, the court emphasized that the property clause must
be interpreted in a manner that promotes the transformative objectives of the
Constitution. The court recognized that the Constitution seeks to address the
injustices of the past and promote social and economic transformation. It was stated
that the court stated that the property clause should not be interpreted in a manner
that unduly restricts the power of the state to regulate and redistribute property
rights. The court recognized that the Constitution allows for limitations on property
rights in the public interest, provided that such limitations are reasonable and
justifiable. In this case the court, considered the purpose, procedural fairness, and
proportionality of the deprivation or expropriation. (page 252, 253 of the study guide
paragraph46, 48, 52,57 of the case)
Question 1.3
Where an owner sells immovable property to a purchaser, the procedure for transfer
is as follows: An owner can only transfer his or her land by means of the registration
of a deed of transfer which is prepared by a conveyancer in the form prescribed by
law or by regulation and which must be executed in the presence of the registrar by
the owner of the land described therein, or by a conveyancer authorised by power of

2
attorney to act on behalf of the owner, and must be attested by the registrar.
Ownership of the land passes to the new owner as soon as the registrar of deeds
affixes his or her signature to the deed. A number is then assigned to the deed of
transfer, which becomes the new title deed of the land described in it. Since the
property to be transferred is an immovable thing the Pienaars should transfer it
through registration at Deeds Registry.
A derivative method of acquiring ownership will also be used in this case. A
derivative takes place with the cooperation of the predecessor in title the Pienaars,
and ownership is transferred from the transferor to the transferee Jonny. Delivery
with the long hand takes place when the transferor points out the thing to be
transferred to the transferee in the presence of the thing. Ownership of the thing is
transferred with the co-operation of the transferor to the transferee. (page 110,114 of
the study guide)
Question 2.1
Katlego has a personal right against Mark in terms of the lease agreement and
service and in terms. Since it is lease of less than 10 years it is not registrable at
Deeds Registry.
Katlego’s father has a right of habitation over the town house and it can be
registered in the Deeds of office by way of inserting as a condition in title deed of the
property. Since he is dwelling, he has a personal servitude conferring a limited real
right on the holder to occupy Katlego’s house. ( page 196 of the study guide)
Katlego has a limited real right over her flat as security for the fulfilment of the loan of
R50000.00 she acquired at SA bank. If she does not fulfil the obligation, SA Bank
can use the security her flat ( to special satisfy the debt. It can be registered at
Deeds Registry in a form of mortgage Bond (page 204 of the study guide)
Question 2.2
The rei vindicatio may be instituted to recover movable as well as immovable
property. Mark could claim his belongings with the rei vindicatio because he should
be able to prove that he/ is the owner, his thing exists and is identifiable and that
Katlego of the things. But to restore control of the rented room, Mark would have to
institute the spoliation remedy. Even if he he is the owner of his belongings that
were removed from the room, he is not the owner of the rented room but he was in
peaceful undisturbed control of the rented room. In terms of spoliation Mark should
should prove that he was in control when Katlego has been disturbed him, that he
was must have enjoying his peaceful and undisturbed control of the room. Katlego
must have disturbed the Mark’s control of the room in an unlawful manner. (page
119,120 and 162 of the study guide)
Question 2.3
They were invalid because Katlego took the law into their own hands by resorting to
self-help which led to the conclusion that the spoliation order (mandament van
spolie) focuses not so much on the parties’ rights to the thing as on the factual
existence of control and on the protection of such control against self-help. It is not

3
the applicant’s right to the thing which is foremost, but the fact that the respondent
unlawfully took the law into his or her own hands
Question 2.2.1
A person against whom the rei vindicatio is instituted (a defendant) may allege that
some of the requirements have not been met. For example a defendant can produce
documentary evidence that proves that the person who instituted the rei vindicatio is
not the owner of the thing that he/she claims. Alternatively, the defendant can prove
that the claimed thing has been destroyed or cannot be identified. Furthermore, the
defendant can defend the rei vindicatio by proving that he/she is not in physical
control of the thing. An interdict can be defined as a summary court order applied for
on an urgent basis To secure arrear rent a landlord has a tacit hypothec over all the
movables (invecta et illata) which are brought onto the premises by the tenant.
Anything belonging to third parties which is brought onto the rented premises by the
tenant is also subject to the landlord’s tacit hypothec if the third parties know where
their property is and intend the tenant to have the use of it, on the rented premises,
for an indefinite period. Therefore Katlego may institute tacit hypothec against Mark.(
page 162, 163, 231 of study guide)
Question 2.2.2
Tacit hypothec of the Lessor: It’s a real security right created by operation of law to
secure the landlords claim against the lessee for rent in arrears. Hypothec applies to
movable of the lessee on the premises. To secure arrear rent a landlord has a tacit
hypothec over all the movables (invecta et illata) which are brought onto the
premises by the tenant. Anything belonging to third parties which is brought onto the
rented premises by the tenant is also subject to the landlord’s tacit hypothec if the
third parties know where their property is and intend the tenant to have the use of it,
on the rented premises, for an indefinite period. Therefore, Katlego may institute tacit
hypothec against Mark. (page 231 of study guide)
Question 2.5
An unlawful holder can be defined as a person who does not regard or conduct him/
herself as the owner, and who recognises and respects the owner’s ownership to the
thing, but who physically controls it for the sake of the benefit he or she derives from
it, without the owner’s permission or other legal ground for his or her control. Two
classes of unlawful holders can be distinguished here, namely bona fide and mala
fide unlawful holders.Tshephang is unlawfulholder of Katlego’s townhouse as she
knows she is not the ownwer but virtue of being siblings8 she thinks she can stay
there.( page 151 of study guide)
Question 2.6
Tshephang is now an unauthorised occupant of the land and will be subject to the
Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998
(the "PIE"). She was also non paying rent. Tshephang can only be removed by
Katlego if she follows the process outlined in PIE and gets a court order to that
effect. (page 121 of study guide)

4
Question 2.6
Tacit mortgages are classified as tacit hypothecs (landlord and credit grantor, rights
of retention or liens (enrichment and debtor-creditor), tacit mortgages in terms of
statutory restraints against alienation of immovable (judicial mortgage. Katlego since
she is the land lord she has acquired tacit mortgage bond as it is the one available to
landlords. (page 271 273)
Question 3

Sandra will not succeed in proving that John was the owner. John could only have
become the owner by means of appropriation. Appropriation or occupation is an
original method of acquisition of ownership. It can be defined as the unilateral taking
of physical control of a thing which does not belong to anyone (res nullius), but which
is within the sphere of law (res in commercio) with the intention of becoming its
owner. The element of the definition which causes problems for John’s reliance on
acquisition of ownership by means of appropriation is the element of control.
Physical control is essential for the acquisition of ownership by means of
appropriation. Where wild animals are astray, but actual physical control is not taken,
appropriation does not take place. Therefore, if one person finds an astray animal he
becomes the owner.(page 64 66)

Question 4.1

Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998
[‘‘PIE’’] it protects people who occupy land unlawfully, in other words, people who
occupy land without the permission of the landowner. The Act was enacted to give
effect to section 26(3) of the Constitution. The purpose of the Act is to provide for
procedures to evict unlawful occupiers, the principle being that nobody may evict an
unlawful occupier of land without the authority of a court order. A part of the eviction
process of unlawful occupiers is that certain circumstances must be considered
before an unlawful occupier may be evicted. These circumstances include the rights
and needs of the elderly, children, disabled persons and households headed by
women and, in certain cases, the availability of alternative accommodation for the
relocation of the unlawful occupier.BNonvula may apply for interdict to evict people
from her farm

Question 4.2

She may apply for a court order . In Port Elizabeth Municipality v Various Occupiers
(2005 (1) SA 217 (CC)) it was held that an eviction order must be just and equitable.
Consequently, parties with competing interests must attempt to reach an agreement
through discussions and/or mediation. If parties cannot reach an agreement the
court may, considering all relevant circumstances, grant an eviction order.

Question 5

Servitudes may arise from one of the following legal facts: agreement, legislation,
court order or prescription. Only an owner may grant a servitude over his/her

5
property. In the case of more than one owner, all the co-owners must cooperate, and
where there is a bond on the property the bondholder must consent to the granting of
the servitude. An agreement (even if it has been notarially executed) or a
testamentary bequest will not establish a servitude, but merely create a personal
right (creditor’s right) to have the servitude registered A negative servitude cannot be
acquired by prescription just because the owner of land has not exercised all his/her
entitlements of ownership. Acquisition of the servitude in this case requires a positive
act preventing the owner from exercising his/her rights ( page 188 of the study guide)

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