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LPY - Tutorial 2 S1 2025

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5 views

LPY - Tutorial 2 S1 2025

Uploaded by

zwelixolilom75
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as PPTX, PDF, TXT or read online on Scribd
You are on page 1/ 14

1

Law of Property (LPY201)


09 April 2025
LIMITED REAL RIGHTS AND OTHER RIGHTS IN PROPERTY
2

LIMITED REAL RIGHTS

• Ownership

• Limited real rights


 Servitudes
 Restrictive conditions
 Real security rights

• Right of ownership is a real right bestowed on the owner granting him absolute
ownership to use, possess, alienate and even destroy what he owns.
• Ownership can be limited by real rights other persons hold over the same
object
3

SERVITUDES

• What is a servitude?
• “A servitude is a right belonging to one person, in the property of another
entitling the former to exercise some right or benefit in the property or to
prohibit the latter from exercising one or other of his normal rights of
ownership.”
• Cleary distinguish between
(a) Personal rights vs Personal servitude
(b) Real rights vs Praedial servitude
Personal right: right existing between 2 persons which is binding on them –
duty towards the other and only binding and enforceable against those 2
persons
Remember: Personal rights can’t be registered – but there are exceptions
4

EXAMPLE OF REGISTERABLE PERSONAL RIGHT

 Blue’s tennis court protrudes one meter onto Green’s property. Blue and
Green have agreed on an amount of remuneration. This agreement creates a
personal right between Blue and Green. Such a right only concern Blue and
green. If Blue refrain from undertaking further steps to register and Green sell
to Purple, the agreement between Blue and Green does not concern purple.
 To make sure it is forceable against Green’s successors in title, Blue must
register a servitude

Real right: Linked to piece of land – registered ownership of land, registered


5

PERSONAL AND PRAEDIAL SERVITUDES

• Personal servitudes is linked to a specific person


• Praedial servitudes is linked to property – dominant and servient property
• Common characteristic in respect of personal and praedial servitudes
Owner of servient thing and the servitude holder cannot be the same person
Servitude holder’s right is absolute and enforceable against whole world
Holder of servitude may freely use and owner can use but must not affect the
rights of holder
Rights and obligations
6

PERSONAL SERVITUDE

 Real right granting the holder thereof in his personal capacity the right to do
something on someone else’s property or to prevent a landowner from
exercising some or other ordinary power as the owner thereon
 Types of personal servitudes
 Use: gives the uses the right during his lifetime or shorter period agree

upon, to use a thing belong to someone else for his own needs or those
of his household without impairment of the essential qualities of the
thing
 User may only take as many fruits of the thing as he meet his needs
 May not sell or alienate the exercising of his right

 Habitatio: Occupancy or residence – entails the right to live in someone


else’s house
 Occupier may let the house
 Lapses upon death of the occupier or expiry of the period
7

PERSONAL SERVITUDES CONTINUE

•  Usufruct: Usufructuary has a limited real right to use another person’s


property as well as to collect and use fruits thereof, with the duty
eventually to return the property to the owner
 Object of the usufruct may be moveable or immovable
 Usufructuary must maintain the object at own expenses
 Entitled to natural fruit and civil fruit of object

• These types of servitudes are not perpetual


• Right may only be transferred or ceded to owner of the burdened property
• Created by registration
8

PRAEDIAL SERVITUDES

A limited real right in the land of someone else (servient) which grant the holder
of the servitude certain entitlement of use and enjoyment in capacity as owner of
the dominant
Characteristics of praedial servitudes
Servitude held by one property over another – at least 2 properties
 Dominant tenement - land entitled to benefit from the servitude
 Servient tenement – land burdened by the servitude
 Person has right to praedial servitude only as owner of dominant property
 Limited period orofperpetuity
Right way
Dominant
Servient Entitled to
Land servitude
burdened
9

ACQUISITION
Registration immovable
Delivery movable
Statutory establishment
Order of court

Termination
Fulfillment
Merger
Abandonment
Impossibility
Prescription
Expropriation
10

ACQUISITION OF POSSESSION AND HOLDERSHIP

 Original acquisition
 Lawful holdership: established in original way

 Derivative acquisition

 Chain acquisition
11

PROTECTION OF POSSESSION AND HOLDERSHIP

 Purpose of remedies for the protection of possession and holdership


(a) Protect property rights –
 lawful holdership against infringement
 Remedies will require proof of property right

(b)Protect community against chaos and anarchy by preventing people from


disturbing existing property
 Lawful or unlawful by self-help
 Remedies aim will not require proof of property
12

RESTRICTIVE CONDITION

• Limitation based on succession or contract which can be registered against


urban or rural land which are registered against the stands in a specific
township which are made applicable by land statue without registration which
limit the entitlement of owner of such land
• Restriction attached to condition:
• Testamentary: Inherit farm but condition that excluded from joint estate
• Donation: not alienate within 20 years
• Township build: All houses 500square meters, no corrugated iron roofs
• No fences erected around property
• Remedies
• Interdict
• Delictual claim for damages
• Apply for abolishment of condition
13

REAL SECURITY: PLEDGE MORTGAGE

• Personal security: Creditor on basis of performance due to her as a result of


personal right against debtor also acquire a personal right against another
person as security for payment of principal debt
• Example: Suretyship

• Real Security: Creditor acquires a limitd real right in the property of the debtor
as security for payment of principal debt by the debtor to the creditor, until
payment of the principle debt

• Example: Pledge, mortgage, cession, Security by operation of law


14

PLEDGE, MORTGAGE

• A pledge is a type of mortgage of movable property given by a borrower (pledgor) in


favour of a lender (pledgee) as security for a debt or other obligation. A pledge can
be used as security for both tangible and intangible movable property. General
notarial bond.
• A mortgage bond is based on an agreement in terms of which the mortgagor
borrows money from the mortgagee and agrees to pass a mortgage bond over a
specific immovable property in favour of the mortgagee as security to the
mortgagee for the repayment of the loan.
• Kustingsbrief – mortgage ifo seller as security for the unpaid balance of person
price
• Money lent and advanced
• Covering Bond
• Surety Bond
• Participation bond
• Notarial Bond

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