Property Law: Acquisition of Ownership, Delivery, Registration, and Neighbour Law

Comprehensive flashcards covering derivative and original acquisition of ownership, forms of delivery, registration, accession, inaedificatio, manufacture, prescription, and neighbour law from PVL2002H.

derivative acquisition definition

ownership derived and transferred from a predecessor in title via a recognised legal transfer mechanism (delivery or registration.)

Two l requirements for derivative transfer of ownership?

• A valid legal agreement (the subjective or mental element)

• conveyance (the objective or physical element: delivery for movables or registration for immovables).

What does South Africa's "abstract system of transfer" mean regarding contracts of sale?

The transfer of ownership is legally abstracted and separate from the underlying transaction or causa; defects in the underlying contract do not necessarily invalidate the transfer of ownership provided there is a valid real agreement and conveyance.

three pre-conditions prior to valid derivative transfer occur?

1. property capable of private ownership (res in commercio);

2. The parties have legal capacity;

3. 3. The transferor must be legally entitled to transfer ownership.

Legal maximsshowing common law rule that a non-owner cannot transfer ownership?

• nemo dat quood non habit ("no one can give what they do not have")

• nemo plus iuris transfer potest quad ipse habit ("no one can transfer more rights than they themselves hold").

What is the real agreement (saaklike ooreenkoms) in derivative acquisition?

The concurrent agreement between the transferor and transferee embodying intention of transferor to transfer ownership and the intention of transferee to acquire ownership, existing at the time of transfer.

objective element of conveyance movables vs immovables

• Movables delivery (traditio),

• immovables registration

Name two situations where ownership of property transfers by operation of law without the ordinary requirement of conveyance.

Marriage in community of property, and certain statutory consequences of insolvency.

What was the key ruling regarding real agreement in Dreyer & Ano NNO v AXZS Industries (Pty) Ltd 2006 (5) SA 548 (SCA)?

• A valid real agreement requires the parties to be ad idem regarding the passing of ownership,

• and the person transferring must possess the actual authority to bind the owners; an unauthorized agent cannot pass title.

Why did registration fail to transfer ownership of immovable property in Knox NO v Mofokeng 2013 (4) SA 46 (GSJ)?

Because the default judgment under which the sale in execution occurred was rescinded, the sheriff lacked the legal authority to transfer property, creating a defect in the real agreement that registration alone could not cure.

In Oriental Products (Pty) Ltd v Pegma 178 Investments Trading CC 2011 (2) SA 508 (SCA), on what ground was the owner barred from vindicating property transferred without authority?

The owner was prevented by estoppel because it negligently allowed the Deeds Registry to mislead third parties and took no action for two years despite knowing of the unauthorized transfer.

What principle governs the Deeds Registry jurisdiction for immovable property, and what records its parcels?

The principle coram iudice rei sitae (matters concerning immovable property are registered in the Deeds Registry where the property is situated), and the cadastral system records parcels via surveys, diagrams, and general plans.

Deeds Registry system in South Africa follow, and its consequences?

South Africa follows a modified negative system: the Deeds Registry is highly reliable but not conclusive proof of title, meaning an erroneous registration does not deprive the true owner of their protected real right.

What was held in Cape Explosive Works Ltd v Denel (Pty) Ltd 2001 (3) SA 569 (SCA) regarding an erroneously omitted condition?

Because South Africa follows a negative registration system, an omission of a validly registered real right by the Registrar in subsequent title deeds does not extinguish the right; the Deeds Registry is not a guarantee of title.

Under common law, when does ownership pass in a credit sale versus a cash sale of movable property?

In a credit sale, ownership passes upon delivery alone; in a cash sale, ownership transfers only when both delivery and full payment of the purchase price have occurred.

According to Eriksen Motors Ltd v Protea Motors Warrenton & Another 1973 (3) SA 685 (A), how is the cash versus credit sale distinction applied?

The distinction is relevant but not conclusive; whether ownership passes depends upon whether the totality of the circumstances shows the parties intended ownership to pass.

distinction between actual delivery (traditio vera) and constructive delivery (traditio ficta)?

• Actual delivery requires physical handover of possession giving the transferee physical control

• constructive delivery transfers ownership without physical movement when physical handover is difficult, impossible, or inappropriate.

What is symbolic delivery (clavium traditio), and what is the rule regarding the transferor retaining keys?

Delivery effected by handing over the means to gain access and physical control (e.g., keys to a warehouse or a bill of lading); the transferee must have exclusive access, so the transferor cannot retain a spare key.

What are the legal requirements for long hand delivery (traditio longa manu)?

The transferor must physically point out clearly identifiable property in the presence of the transferee and place it at their disposal so the transferee can exercise physical control without legal assistance.

Why did long hand delivery fail to transfer ownership to Groenewald in Groenewald v Van der Merwe 1917 AD 233?

When Groenewald inspected the threshing machine, he did not intend there and then to acquire and exercise physical control over it as his own; hence the parties were not ad idem on the method of constructive delivery.

How does constructive delivery occur via constitutum possessorium?

The transferor retains physical possession after transfer pursuant to a separate bona fide contractual arrangement (causa detentionis), while ownership transfers on the basis of the changed legal intention of the parties.

What constitutes short hand delivery (traditio brevi manu)?

A form of constructive delivery used when the transferee is already in physical detention or possession of the property (e.g., as a lessee) and the parties form the intention that the transferee will henceforth hold as owner.

What are the legal requirements to effect constructive delivery by attornment?

A third party in possession holds under a tripartite agreement between transferor, transferee, and third party, where the third party is instructed of the transfer and explicitly agrees to hold the property for the transferee.

Why was delivery by attornment rejected in Southern Tankers t/a Unilog v Pescana D'Oro 2003 (4) SA 566 (C)?

The third-party warehouse (Atlantic Cold Storage) had merely been notified of the change in ownership, but had not been instructed by the transferor to hold on behalf of Velmar and had not agreed to do so.

How did Page Automation (Pty) Ltd v Profusa Properties CC 2013 (4) SA 37 (GSJ) validate delivery without a contemporaneous tripartite agreement?

It held that cession of rights coupled with an advance contractual clause by the possessor agreeing that the financier could cede rights/ownership to any third party functions as constructive delivery.

What primary theoretical criticism is raised against recognizing cession of the right to vindication as a mode of delivery?

It violates the principle of publicity, fails the physical delivery requirement, and misconstrues vindication, which is an inseparable incident of ownership that cannot be ceded separately to transfer title.

How does the National Credit Act (NCA) affect ownership transfer in installment sales and credit facilities?

The NCA mandates that installment sale agreements specify by clause when ownership passes, whereas credit facility transactions adhere to common law where ownership transfers on delivery only.

What is original acquisition of ownership and what are its defining characteristics?

Ownership acquired independently without a transfer of rights from a predecessor in title; the title is entirely new, cooperation of a previous owner is unnecessary, and prior burdens do not automatically pass.

What are the seven recognized forms of original acquisition of ownership in South African law?

Appropriation (occupatio), accession, manufacture (specificatio), mixing and fusing (commixtio et confusio), acquisition of fruits, expropriation, and acquisitive prescription.

What is appropriation (occupatio) and what are its three essential requirements?

The unilateral exercising of physical control over an unowned corporeal thing capable of ownership with the intention of becoming owner; requiring (a) physical control (corpus), (b) animus domini, and (c) an unowned corporeal thing.

Distinguish between res nullius, res derelicta, and res deperditae in property law.

Res nullius has never been owned; res derelicta was owned but abandoned with the intention of renouncing ownership; res deperditae are lost items not intended to be abandoned, which cannot be acquired by appropriation.

How does the Game Theft Act 105 of 1991 alter the common law rules regarding escaped wild animals?

Wild animals kept in cages, kraals, vehicles, or on sufficiently fenced land for commercial/hunting purposes under a certificate do not lose their ownership status if they escape (Eastern Cape Parks Tourism Agency v Medbury).

Under what circumstance do domesticated animals become res nullius capable of appropriation?

Domesticated animals (wild by nature but owned because they are in the habit of returning) become res nullius as soon as they lose their habit of returning (animus revertendi) to the owner.

What legal principle regarding res derelicta was illustrated in Reck v Mills 1990 (A)?

A shipwreck is generally accepted as res derelicta, but an intention to abandon property is not lightly inferred; physical control and animus domini are required to appropriate components like a condenser.

What is the legal definition and main consequence of accession?

The joining of two or more corporeal things (principal and accessory) through natural or human activity to form a composite whole; the owner of the principal thing becomes sole owner of the composite thing ex lege.

What are the three forms of accession of immovables to immovables?

Alluvion (alluvio: gradual deposit of silt/soil), avulsion (avulsio: sudden detachment of land by floodwaters visibly attached elsewhere), and island formation (insula nata: natural islands formed in public riverbeds).

What does the doctrine superficies solo cedit establish in planting and sowing (plantatio et satio)?

"The surface accedes to the land": immovable land is always the principal thing, and growing plants or crops accede to the landowner as soon as they take root and are nourished by the soil.

What three tests are used by the courts to determine inaedificatio (building acceding to land)?

1. Nature and purpose of the movable; 2. Manner and degree of attachment; 3. Intention of the annexor at the time of attachment.

How was the "nature and purpose" test applied in Standard-Vacuum Refining Co of SA v Durban City Council 1961 (A)?

Steel oil storage tanks weighing $450\text{ tons}$ were held to have acceded to the land due to their sheer weight, structural size, and permanent purpose of serving the refinery operations on the land.

How does the traditional approach in MacDonald v Radin 1915 (A) evaluate the annexor's intention in inaedificatio?

Subjective intention is considered only as a last resort when the nature and purpose of the movable and the manner and degree of attachment fail to provide a definitive objective conclusion.

How did Konstantz Properties v WM Spilhaus 1996 (A) clarify the role of subjective intention in inaedificatio?

It confirmed Theatre Investments by holding that the subjective intention of the owner/annexor is definitive if the first two physical criteria (nature and manner of attachment) are inconclusive.

How is the principal thing determined in the accession of movables to movables under Khan v Minister of Law and Order 1991 (T)?

The principal thing is determined by looking at bulk and value, and critically which component gives the newly formed composite article its essential character, form, and function.

What is manufacture (specificatio) and what are its three essential requirements?

Acquiring ownership of a manufactured item using another's materials without permission; requires: (1) production of a completely new thing (nova species), (2) an irreversible manufacturing process, and (3) lack of the material owner's consent.

Distinguish between commixtio and confusio, and state the property consequence if separation is impossible.

Commixtio is the unauthorized mixing of solid materials; confusio is the mixing of liquids. If the mixture is indivisible, original owners become co-owners of the combined mass proportionally to their contributions.

What is expropriation, and under what four statutory conditions may nil compensation be just and equitable?

An original acquisition mode where an organ of state acquires ownership ex lege in the public interest; nil compensation may apply if: land is unused and held for appreciation, unneeded state-held land, abandoned land, or current market value is equal to or less than direct state subsidy.

What are the legal requirements to acquire ownership through acquisitive prescription under South African law?

Open and undisturbed possession (corpus) with the intention of an owner (animus domini) for an uninterrupted period of $30\text{ years}$, requiring a formal court order to amend the Deeds Registry.

What is the legal nature of an owner's duty to provide lateral support to neighboring land?

It is an inherent legal duty of support rather than a reciprocal servitude; an owner who excavates causing subsidence is strictly liable for actual loss without requiring proof of fault or negligence.

Distinguish between nuisance in the narrow sense and nuisance in the wide sense.

Nuisance in the narrow sense refers to interference with a neighbor's quality of life (health, comfort, well-being), while nuisance in the wide sense involves abnormal use of land causing or threatening actual physical damage to property.

In Laskey and Another v Showzone CC 2007 (2) SA 48 (C), how is a "disturbing noise" defined under the regulations, and why was the interdict suspended?

A noise exceeding the continuous ambient sound level by $7\text{ dBA}$ or more; the court granted an interdict against theatre noise but suspended its operation for four months to allow the respondent to install acoustic roof insulation.

What was the Supreme Court of Appeal's ratio and remedy in Allaclas Investments (Pty) Ltd v Milnerton Golf Club [2007] 167 SCA?

The ingress of $875$ badly aimed golf balls over a $4.7\text{ metre}$ net onto residential property over roughly two years was an excessive and unreasonable nuisance; the SCA interdicted the 6th hole's use, suspended for one month to allow barrier installation.