Ownership

• As a student of property law you should be able

to define ownership and to name and describe
the entitlements of ownership.
• The concept ‘‘ownership’’ has developed over
centuries and it is linked to the particular
ideological, socio-political and economic
foundation of the society.
• It is not a static concept, but one that is
continuously being adapted to suit the needs of
the society in which it operates.
• Although, in principle, ownership is the most
comprehensive real right a person can have to
his/her thing, it is not unlimited.
• The limitations on ownership may change from time to
time and from community to community. The law may
limit ownership for various reasons, for example to
protect the environment, to benefit specific
communities or the community as a whole, to regulate
urbanisation, to harmonise conflicting interests of
individual owners among themselves or with other
members of society.
• Therefore the society in which ownership functions will
determine the nature and content of ownership.
• In discussing real rights we distinguish between
ownership, which is a right to one’s own thing
(ius in re propria), and various limited real rights,
which are rights to another person’s things (iura
in re aliena).
• Ownership is the mother right from which limited
real rights flow.
• Ownership can be defined with reference to its
inviolability, its inherent nature or its
entitlements.
• The traditional view of ownership is
encapsulated in the phrase plena in re
protestas i.e. the owner has the power to do
what he pleases with the property owned
within the limits of the law.
• The concept of ownership has never been
absolute and there are limits to it.
• Limitation has always been part and parcel of
the concept of ownership
 Definition
• No single definition can encapsulate all the
elements of ownership.
• Ownership is the most comprehensive real
right a person can have with regard to a thing.
In principle, a person can act upon and with
his thing as he/ she pleases. This apparent
freedom is restricted, however, by the law and
the rights of others.
 Definition
• The common law Definition focuses on the
theorectical completeness of the right that a
subject can have over an object.
• Only the owner has the most absolute
entitlements over the property.
• This is linked to the principle that no-one can
transfer more rights than he has i.e. no one
has more rights than the owner has.
• Ownership can be defined with reference to
its entitlements (powers) as well at to certain
characteristics that distinguish it from limited
real rights.
in Johannesburg Municipal Council v Rand
Township Registrar 1910 TPD 13 14 the
following entitlements of ownership were
identified:-
 The entitlement
(a) Use a thing (ius utendi)
(b) The fruits; including income from a thing (ius
fruendi)
(c) Consume and destroy the thing ( ius abutendi)
(d) Possess the thing (ius possidendi)
(e) to dispose of the thing (ius dispenendi)
(f) Claim the thing from any unlawful possessor
(ius vindicandi)
(g) to resist unlawful invasion
 Use

• An owner’s entitlement to use and enjoy the

thing is generally the most important entitlement
of ownership.
• People acquire ownership of things because they
wish to use and enjoy them.
• By making use of the entitlement to burden the
thing, an owner voluntarily limits the entitlement
of use, for example by granting a right of
habitation. In this case the servitude holder has
the use and enjoyment of the thing and the
owner no longer has the use .
 Fruits
• An owner is also entitled to the natural and
civil fruits of the thing.
• An owner has the entitlement to physically
control the thing. By making use of his/her
entitlement to burden an owner may, for
example, pledge a thing.
• The owner then transfers control of the thing
to the pledgee and therefore the owner no
longer has control
 Consume or destroy
• An owner is entitled to consume or destroy the thing.
• An issue which is becoming more and more
controversial is whether an owner can actually destroy
the thing. Here the question arises whether the State
can, for example, deny an owner the possibility of
destroying a thing that is scarce or valuable to the
community as a whole.
• Think of cultural objects or valuable artworks. The
answer to this question will be determined by the way
in which society views the object in question and sees
its role in determining the nature of ownership.
 Alienate

• An owner is entitled to alienate the thing by means of a sale or

donation and transfer of ownership. Ownership of the thing passes
to the buyer or the donee only upon transfer of ownership.
• In the case of movables this takes place by means of delivery and in
the case of immovables, by means of registration.
• Ownership can only be transferred to a third person by the owner
or by someone who has been authorised to do so. This is in
accordance with the inviolability principle of ownership which
derives from the Roman law maxim: nemo plus iuris in alium
transferre potest quam ipse haberet.
• Therefore, where a non-owner sells the thing, the sale is valid but
the seller cannot transfer ownership.
 Burden

• An owner is entitled to burden the thing by

granting other people limited real rights to the
thing. Such limited real rights will limit or
burden the ownership
• In such a case the owner’s ownership is
limited or burdened in that some of the
entitlements are frozen for as long as the
pledge or mortgage is in existence.
 Vindicate
• Because of the inviolability of ownership, an
owner is entitled to claim his/her thing from
anyone who is unlawfully in control of the
thing, simply by proving ownership.
 The characteristics
• Ownership is a ‘mother right’ in that it
confers the most comprehensive control over
a thing. An owner can dispose of many of the
entitlements of the use and enjoyment by
giving real rights to others.
 The characteristics
• Ownership has a residual character which is
sometimes referred to as the ‘elasticity of
ownership’ this means that no matter how
many entitlements the owner disposes of,
he/she retains reversionary rights to those
entitlements, once these entitlements are
extinguished the ownership becomes
unencumbered again.
 The characteristics
• ownership is unlimited in duration.
• Ownership is an independent right. Unlike
limited real rights, it is not dependent or
derived from any other rights.
LIMITATIONS OF OWNERSHIP
• Ownership is limited as follows:
• Limitations imposed by law
• These limitations can be subdivided into:
(I) Statutory limitations
(II) Limitations imposed in terms of neighbour law principles
• Limitations imposed by the rights of other legal subjects
• These limitations can be subdivided into:
(i) Limitations imposed by the limited real rights of third
parties.
(ii) Limitations imposed by the personal rights (creditor’s
rights) of third parties.
 Limitations
imposed on
ownership

Real rights of
law
other subjects

Neighbour Personal
Statutory law Real rights
law rights
 Public law limitation
• Ownership is limited by the state.
• Public law limitations are imposed on all owners
for the benefit of the society at large or a
particular segment of society.
• Look at s8 of Botswana Constitution – where
expropriation and limitations of some
entitlements of ownership is possible;
• Eg. Acquisition of Property Act Cap 32:10
• Eg. State ownership of mineral resources, water
law etc.
 Private law limitation - nuisance
• All owners have the same entitlements.
• When an owner exercises these entitlements
it can negatively affect other users of their
entitlements.
• Neighbour law regulates how these conflicts
are resolved.
 Private law limitation - nuisance
• The general principle is that each owner is
entitled to the use and enjoyment of his
property, exercised in a reasonable manner to
avoid unreasonable infringement on the
neighbour's similar entitlement.
• (Malherbe v Ceres Municipality 1951 (4) SA 510 (A)).
An owner must therefore exercise his/her entitlements
as owner reasonably and the neighbour must endure
such exercise in a reasonable way. A certain degree of
tolerance is expected of neighbours in the exercise of
their entitlements as owners. The standard to be
applied was formulated in
• Prinsloo v Shaw (1938 AD 570 590): The standard to be
taken must not be that of the perverse or finicking or
overscrupulous person, but of the normal man of sound
and liberal tastes and habits.
• In neighbour law situations we distinguish between nuisance in a
narrow sense and nuisance in a broad sense.
• In the narrow sense nuisance occurs where a neighbour’s right of
personality or entitlement of use is infringed by, for example, noise
or smell
• (Prinsloo v Shaw 1938 AD 570; De Charmoy v Day Star Hatchery
(Pty) Ltd 1967 (4) SA 188 (D)).
• This infringement does not necessarily result in damage, but rather
in a personality infringement. The remedies are a prohibitory
interdict and/or a claim for delictual compensation.
• Nuisance in the broad sense results in damage to property and the
remedies are a prohibitory interdict and/or a claim for delictual
damages (Malherbe v Ceres Municipality 1951 (4) SA 510 (A); Regal
v African Superslate 1963 (1) SA 102 (A)).
• Regal v African Superslate (1963 (1) SA 102 (A)) dealt with nuisance
in the broad sense The court had to decide whether an interdict can
be awarded to prevent future damage to the neighbouring property
where the source of the nuisance was created by a previous owner
of the property. It has been held by the court that the current
owner of the farm cannot be held responsible for damage caused
by the use of the property by a previous owner. The court further
held that neighbour law is based on the principle of
reasonableness. If it was reasonably possible for the current owner
to prevent the damage from happening again in future, the failure
to do so would amount to an unlawful act. This would entitle the
neighbour to an interdict and/or a delictual claim for damages. The
court held that the current owner had acted reasonably.
• You will notice that the remedies in neighbour law are both
property-law remedies and delictual remedies.
 Lateral and surface support
• Every owner of a piece of land is entitled to
support from his/her neighbour’s land. This
means that an owner cannot make
excavations on his/her land which result in
his/her neighbour’s land subsiding.
• Should this occur, the owner who made the
excavations is liable for the damage caused to
the neighbour’s land, even in the absence of
fault, since
 Lateral and surface support
• this is a form of strict liability (ie liability without
fault). This principle, however, applies only where
the land is still in its natural state (Gijzen v
Verrinder 1965 (1) SA 806 (D) and
• Foentjies v Beukes 1977 (4) SA 964 (C)). Once the
natural state has been changed by, for example,
building on it, this rule no longer applies. Today in
most cities and towns extensive building
regulations regulate the position.
 Encroachments
• Where owners encroach on their neighbour’s
land, the rules regarding encroachments come
into operation.
• A distinction is drawn between buildings and
trees (the latter are subdivided in branches
and roots).
 Encroachments / Buildings
• The owner of the land on which an encroachment has taken place
can use one of the following remedies:
(i) The owner can claim removal of the encroachment. The owner
cannot, however, remove the encroachment because he/she
cannot take the law into his/ her own hands. Removal cannot be
claimed if he/she stood by and, with full knowledge of the facts,
did not insist on removal. The courts have a discretion in deciding
whether to order removal or payment of compensation. The
court can also order transfer of the piece of land encroached
upon to the encroacher.
(ii) The owner can claim ejectment from his/her land against
payment of compensation for the enhancement of his/her
property. On the grounds of equity and convenience the courts
can also order transfer of the land encroached upon against
payment of compensation.
 Encroachments / Buildings
(iii) The owner can claim that the encroacher should take
transfer of the land encroached upon and pay
compensation (Lombard v Fischer [2003] 1 All SA 689
(O); Trustees of the Brian Lackey Trust v Annandale
[2003] 4 All SA 528 (C). This compensation is
determined with reference to:
• all costs of the transfer (including the costs of a survey
and diagrams)
• the value of the land
• & solatium (compensation for personality
infringement) for the trespass and involuntary
deprivation of land
 Encroachments / trees
Branches
• 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/herself.
• The neighbour may not keep the branches, however,
unless the owner consents or fails to remove them
within a reasonable time after demand (Malherbe v
Ceres Municipality 1951 (4) SA 510 (A);
 Encroachments / trees
Roots
• In principle the principles outlined for trees
should apply to roots.
• There is clear authority for the principle that
the neighbour may remove the roots
encroaching on his/her land, but little
authority on the question whether he/she
may compel the owner of the plants to do so.
 Encroachments / trees
• In Bingham v City Council of Johannesburg (1934 WLD
180), the roots of trees destroyed the neighbour’s
flower garden. It was held that the owner of the trees
had to remove the trees since they had caused a
nuisance. The owner had to remove the nuisance itself,
not merely the encroachment.
• In Smith v Basson (1979 (1) SA 559 (W)), where roots
and plants intruded five metres into the neighbour’s
land, the court held that the neighbour could remove
the roots and plants. The court left the question open
whether the neighbour could claim damages from the
owner or could compel him to remove the
encroachments.
 Surface water
• Every owner of land has to receive the natural
flow of water from adjoining land. The upper
owner may not, however, interfere with the
natural flow of water in a manner prejudicial to
the lower owner.
• In a rural tenement the lower owner can institute
the actio aquae pluviae arcendae, by means of
which he/she can claim removal of any works
causing such interference, as well as damages for
damage sustained after litis contestatio (close of
pleadings).
 Surface water
• In an urban tenement the water should be diverted to the
nearest street and only if that is not possible can it be
diverted onto the lower tenement provided all reasonable
precautions have been taken to avoid damage to the lower
tenement (Williams v Harris 1998 (3) SA 970 (SCA)).
• In Papalardo v Hau (2010 (2) SA 451 (SCA)) the court held
that the owner of the lower tenement must allow the
natural flow of water from the higher tenement onto his
tenement. Owners of urban tenements can institute the
actio negatoria de stillicidio vel flumine, in terms of which
the lower owner denies that he/she is liable to receive
drippings or a stream of water from the upper tenement.
 Surface water
• In Redelinghuis v Bazzoni (1976 (1) SA 110 (T) 117B), the
court laid down the following criteria to determine whether
one is dealing with a rural or an urban tenement:
(i) the size of the land concerned
(ii) the extent of the building development in the catchment
and drainage area
(iii) the identifiability of the original topographical qualities
of the land
• In applying these principles the court came to the
conclusion that a stand in Arcadia, an old suburb of
Pretoria, was still rural land and the owner of the lower
tenement could rely on the actio aquae pluviae arcendae.
 Party walls and fences
• A party wall is a wall built on the boundary
between two pieces of land in such a manner
that it stands partly on the land of one owner
and partly on the neighbouring owner’s land.
• It is irrelevant who erected the wall. Each
owner is the owner of that part of the wall
which is on his/her property and has a
servitude of lateral support over the part of
the wall which is on the other side.
 Party walls and fences
• A party wall may not be demolished without the
consent of the other owner, subject, however, to the
exception that a wooden fence may be demolished and
replaced by a brick wall.
• Both owners are liable for the maintenance of the wall,
unless one of the owners has abandoned his part of
the wall in favour of his/her neighbour. Both owners
should refrain from doing anything which could affect
the stability of the wall.
• Each owner is entitled to beautify his/her section of
the wall or to extend his/her section of the wall.
 Elimination of dangers

• Liability for the creation of danger is dealt

with extensively in the law of delict.
• However, it is important to note here that an
owner has a duty to remove or eliminate
dangerous situations on his property, for
example, the storing of poisonous substances,
keeping of vicious dogs, etc.
 Gein v Gein
• Respondent had erected a scaring apparatus on his farm to chase away baboons
and other wild animals from his vegetable garden and a building which was used
as a store. The apparatus made explosive noises at regular intervals. Respondent
had so set the apparatus that it worked day and night. Applicant's farm adjoined
respondent's farm and was situated in a quiet, rural and well wooded area where
cattle farming was mainly carried on. People who were in the applicant's house
during the daytime as well as the night found the explosive noises disturbing and it
interrupted their sleep. Animals of the applicant reacted to the noises to such an
extent that a horse, which was normally tame, threw its rider and could only be
calmed down with difficulty and eventually had to be removed from the farm so
that it could be made controllable. Cattle of the applicant appeared to be restless
and caused problems when they had to be dipped. It was possible for the
respondent to muffle the sound of the apparatus by adjusting it without appearing
to frustrate the purpose for which it was erected. The area which had to be
protected by the apparatus was approximately 100 metres in diameter. It was also
not necessary for the apparatus to work at night. In an application for an interdict
against the use of the apparatus in such a way that it caused a nuisance on
applicant's property,
 Gein v Gein
• The applicant wrote to the respondent to
complain about the noise during the night.
The respondent ignored the letter and refuses
to speak to his neighbour on the telephone.
Applicant and his neighbour are not on
speaking terms because the neighbour
seriously insulted him a few years ago.
 Gein v Gein
• This case is important because:-
(a) The definition of ownership. Ownership is
defined with reference to its inherent nature, as
the most comprehensive real right a person can
have in a thing. The point of departure is that a
person can do with his/her thing as that person
pleases. No owner has the unlimited right to
exercise his or her entitlements in absolute
freedom in his/her discretion.
 Gein v Gein
• An owner's rights of ownership then extend only
so far as there rests an obligation on his neighbor
to endure the exercise of that right. That involves
an obligation on the one owner so to exercise his
right that he does not exceed that limit. If it is
exceeded, he no longer acts according to the
right which his right of ownership accords to him
and he infringes the right of his neighbor. That is
unlawful conduct which the law does not tolerate
and which can form the basis of an interdict
 Gein v Gein
• Limitation of ownership through neighbour
law – the law of nuisance. The neighbour was
prohibited by interdict.
• an adjoining owner was entitled to require of
his neighbor that he did not cause a greater
noise than the reasonable carrying out of his
economic activities demanded.
 Gein v Gein
• that the interests which the respondent
wished to protect were of such a limited
extent and of little economic value and the
nature of the measures so drastic in the
particular area that respondent had
completely exceeded the rights conferred on
him by his right of ownership to protect those
economic interests.
 Malherbe v Ceres Municipality

• FACTS: The appellant, Malherbe approached the

court for an interdict ordering the respondent,
Ceres Municipality, to prevent acorns and leaves
of oak trees growing alongside the streets of
Ceres, from falling onto his property. The
appellant averred that the oak trees constituted a
nuisance on his property in that the falling oak
leaves blocked the gutters of his building, thereby
causing rainwater to damage the walls of the
building.
 Malherbe v Ceres Municipality

• LEGAL QUESTION: To determine whether

falling leaves and acorns and protruding
branches of trees growing alongside streets
constitute a nuisance.
• GENERAL: The law expects a degree of
tolerance (1) between neighbours in the
exercise of their entitlements of ownership.
 Malherbe v Ceres Municipality

• REGARDING LEAVES FROM TREES NEXT TO THE

STREET: The planting of oak trees alongside the
streets of towns and cities is considered to be
compatible with the natural and normal use in
the Western Province. Oak trees are benign, as
well as being ornamental and shade giving. If
their leaves are blown onto neighbouring
premises by the wind then the owners of those
premises must endure them as a natural result of
the normal use of the street by the respondent.
 Malherbe v Ceres Municipality

• REGARDING LEAVES FROM OVERHANGING

BRANCHES: The appellant cannot complain about
falling leaves and acorns from overhanging
branches, if he allows such branches to protrude
onto his property. If he chooses to allow the
branches of trees to protrude onto his property,
he cannot expect his neighbour to clear the
leaves from his property.
•
 Malherbe v Ceres Municipality

• If the appellant wishes to prevent leaves and

acorns from overhanging branches from falling
onto his property, he should request the
respondent to remove the branches. If the
respondent refuses to remove the branches, the
appellant may either remove them himself or he
may apply for an interdict either ordering the
respondent to remove the overhanging branches
or forbidding him to let the branches protrude
onto the appellant's land.
 Malherbe v Ceres Municipality

• APPLICATION OF FINDING ON RELEVANT FACTS:

• The application for an interdict failed. The falling leaves did
not cause any obvious damage to the appellant's building.
The damage complained about could have been avoided by
annually spending a small amount of money on the
cleaning of the gutters. It is reasonable to expect the
appellant to exercise a degree of tolerance in this regard.
• With regard to the overhanging branches the appellant
failed because he did not prove that he had requested the
respondent to remove the branches, or that the
respondent had refused to remove the branches or had
claimed that he had a right to let the branches protrude
onto the appellant's land.
 Types of ownership
• A distinction is drawn between free co-
ownership and bound co-ownership.
• Co-ownership can be defined as the situation
where two or more persons own the same
thing at the same time in undivided shares. It
is important to note that it is the abstract
concept of ownership that is divided, not the
thing itself.
 Types of ownership
• In free co-ownership the co-ownership is the only
relationship between the co-owners
• Bound co-ownership exists where there is an
underlying legal relationship between the co-owners
which determines the basis of their co-ownership, for
example, a marriage in community of property, a
partnership or a voluntary association. In all these
cases the underlying relationship will determine, for
example, whether the co-owner can burden or alienate
their shares, how the co-ownership can be terminated
and how the entitlements will be exercised by each co-
owner.
 Elements of co-ownership
• Ownership
• Several persons cannot be separate owners of the
same thing at the same time. No co-owner is a
separate owner of the whole thing. Each co-owner
owns the thing jointly in undivided shares together
with the other co-owners.
• Two or more persons
• In co-ownership there are always a number of legal
subjects and various legal relationships are covered.
Co-ownership occurs, for example, in the case of
mixing of solids and mingling of fluids, joint heirs, joint
legatees, joint donees and joint purchasers.
 Elements of co-ownership
• Business partners and members of an
unincorporated association are co-owners of the
property owned by the partnership or
association. In the case of a marriage in
community of property, the husband and wife
become co-owners of the common estate, each
of them having an undivided share in the estate .
When the marriage is dissolved by death or
divorce the common estate ceases to exist and is
divided into two halves.
 Elements of co-ownership
• One thing in undivided shares
• A co-owner is not the owner of the whole thing. Nor is
he/she the owner of a particular physical part of the thing,
for no physical or corporeal division of the thing has taken
place. The thing which is jointly owned is not divided. It is
the ownership which is divided by a conceptual or
imaginary division. Thus there can be the co-owners of a
pen, a book, a house, a motor car, a wireless, a farm,
etcetera. Co-owners, in undivided shares, of the thing
concerned, regardless of whether the thing is a divisible or
an indivisible thing. The undivided shares in the ownership
of the co-owners may be equal ( (½) and (½)) or unequal
(eg, (¼) and (3/4)
 RIGHTS AND DUTIES REGARDING
THING
• Whole thing
• It should be borne in mind that the ownership is divided
and not the thing. Therefore, to alienate (by means of a
sale or donation) or burden (by means of a pledge or
mortgage) the thing as such, all the co-owners must
consent to the alienation or burdening and cooperate in
complying with the required formalities. In Bonheur 76
General Trading (Pty) Ltd v Caribbean Estates (Pty) Ltd
(2010 (4) SA 298 (GSJ) 303G), Van Eeden AJ remarked that
the general rule is that a single co-owner cannot alienate or
burden the whole of the property. If the common property
is alienated or burdened with a real right, the consent of all
the co-owners is required.
 RIGHTS AND DUTIES REGARDING
THING
• Use
• Every co-owner is entitled to use the thing
reasonably and in proportion to his/her
undivided share (Erasmus v Afrikander
Proprietary Mines Ltd 1976 (1) SA 950 (W)).
• Co-owners can jointly decide how to use the
thing, for example, in terms of a use
agreement. This agreement is, however, only
binding on the parties to the agreement.
 RIGHTS AND DUTIES REGARDING
THING
Profit, income and fruits
• The co-owners are entitled to share in the
fruits, income or profit regarding the property
in proportion to each co-owner’s share.
• They may vary this by agreement, which
agreement is binding only on the parties to it.
 RIGHTS AND DUTIES REGARDING
THING
Maintenance and expenses
• The co-owners must contribute to the
maintenance of and expenses regarding the
thing in proportion to their shares.
• This is obligatory only in relation to necessary
expenses for the preservation of the property.
 RIGHTS AND DUTIES REGARDING
THING
Undivided share
• Every free co-owner can make completely independent
arrangements with regard to his/her own undivided
share in the ownership of the thing. Thus every free co-
owner may alienate, mortgage, burden with a personal
servitude (usufruct see Pretorius v Nefdt and Glas 1908
TS 854; Bonheur 76 General Trading (Pty) Ltd v
Caribbean Estates (Pty) Ltd 2010 (4) SA 298 (GSJ) 305A-
306A), rent or leave to his/her heirs the undivided
share in the ownership, without the cooperation of the
other free co-owners.
 RIGHTS AND DUTIES REGARDING
THING
• In the case of bound co-ownership this entitlement is restricted by
the terms of the underlying legal relationship, for example a
marriage in community of property or a partnership. Every free co-
owner can use the thing in proportion to his/her undivided share in
the ownership, provided that the use is reasonable. A free co-
owner cannot use the thing as though he/she were its sole owner,
for example, one of the co-owners cannot give permission to a third
person to use the common property without consulting the other
co-owners (see Pretorius v Nefdt and Glas 1908 TS 854).
• The profit which a free co-owner makes out of reasonable use,
which is in proportion to his/her undivided share of the ownership
of the thing, may be retained and need not be shared with the
other co-owners.
 RIGHTS AND DUTIES REGARDING
THING
Exclusive use of part of thing
• Only with the cooperation of all the co-owners may any
steps be taken with regard to a specific portion of the
thing, for example, by means of alienation, burdening,
alteration or renting of a specific portion of a farm. A
co-owner cannot unilaterally appropriate to
him/herself a portion of the thing (not even in
proportion to his/her undivided share) without the
cooperation of the other co-owners. The co-owners
may also agree on the proportionate use of a movable
thing, for example a tractor may be used by co-owners
for different periods.