M.D.T.E.

Abeynayake
LL.B (Hons) ,LL.M, M. Phil, Attorney-at-Law
Senior Lecturer
University of Moratuwa
Property Rights under the Roman Dutch
Law (RDL)

 Respect to neighbor’s possession

 Not to interfere wrongfully with
neighbor’s enjoyment
 Not to cause a subsidence of the
neighbor’s land.
 Not to interrupt the flow of a
stream
 Rights in rem Vs. Right in
Personam

• Property Law is so much connected with the Roman Dutch Law.

• Unless a statute or provision is introduced.
• Sri Lankan case law related to property is much similar to South African case
laws.
Alienation
 Immovable require special formalities. Thus in Sri Lanka
the alienation of immovable requires notaries attestation
(E.g Deed ) under the Section 2 of the Prevention of
Frauds Ordinance.
 In regard to the alienation of movables the procedures
are different. Thus , a sale of goods may be made in
writing or orally or may be partly written and partly
orally. It is stated that Section 45 of Sales of Goods
Ordinance of Sri Lanka.
Property Rights
Different parties may claim a competing
interest in the same property by mistake or
by fraud.
For example, the party creating or
transferring an interest may have a valid title,
but may intentionally or negligently create
several interests wholly or partially
inconsistent with each other.
 A court resolves the dispute by adjudicating
the priorities of the interests.
Property rights and rights to people

Property rights are rights over things

enforceable against all other persons.
 By contrast, contractual rights are rights
enforceable against particular persons.
 Property rights may, however, arise from a
contract; the two systems of rights overlap.
In relation to the sale of land, for example, two
sets of legal relationships exist alongside one
another: the contractual right to sue for
damages, and the property right exercisable
over the land.
Rights of properties
More minor property rights may be created by
contract, as in the case of easements, and
equitable servitudes.
A separate distinction is evident where the rights
granted are insufficiently substantial to confer on
the non owner a definable interest or right in the
thing.
The clearest example of these rights is the license.
 In general, even if licenses are created by a
binding contract, they do not give rise to property
interests.
Transfer of property
The term "transfer of property"
generally means an act by which a
living person conveys property, in
present or in future, to one or more
other living persons, or to himself
and one or more other living persons.
To transfer property is to perform
such an act.
The right to property or right
to own
property ownership is often classified as
a human right for natural persons
regarding their possessions.
A general recognition of a right to
private property is found more rarely and
is typically heavily constrained insofar as
property is owned by legal persons (i.e.
corporations) and where it is used for
production rather than consumption.
Rights
A right to property is recognised in Article 17 of
the Universal Declaration of Human Rights, but
it is not recognised in the International
Covenant on Civil and Political Rights or
the International Covenant on Economic, Social
and Cultural Rights.
 The European Convention on Human Rights,
in Protocol 1, article 1 acknowledges a right for
natural and legal persons to "peaceful enjoyment
of his possessions", subject to the "general
interest or to secure the payment of taxes".
Property Rights
Controversy centres upon who is deemed to have
property rights protected (e.g. human beings or also
corporations), the type of property which is protected
(property used for the purpose of consumption or
production) and the reasons for which property can be
restricted (for instance, for regulations, taxation or
nationalisation in the public interest).
In all human rights instruments, either implicit or
express restrictions exist on the extent to which
property is protected. Article 17 of the Universal
Declaration of Human Rights (UDHR) enshrines the
right to property follows:
Rights
The right to property is one of the most
controversial human rights, both in terms of
its existence and interpretation.
The controversy about the definition of the
right meant that it was not included in
the International Covenant on Civil and
Political Rights or the International Covenant
on Economic, Social and Cultural Rights.
Rights
(1)Everyone has
the right to own
property alone
as well as in
association with
others.
(2) No one shall be
arbitrarily
deprived of his
property.
Limitation of Ownership and Possession

This is probably the most

fundament at of the rights
subsumed in ownership.
 This is include rights to recover
possession and rights to exclude
others from the property.
At present legislation of Sri Lanka
has restricted right to possession.
Limitation of Ownership and Possession

E.g.1 The Land Acquisition Act ( No. 09 of

1950 ) and its amendment acts make provision
for the acquisition of lands for public purposes.
E.g. 2 The Town and Country Planning
Ordinance No. 13 of 1946 declare that where
provision is contained in any planning scheme
authorizing the acquisition of any land, it is
lawful for the executive authority responsible for
the execution of that provision to purchase the
land by agreement.
 Here, again, modern legislation has imposed
fundamental limitations on the attributers of
ownership.
Limitation of Ownership and Possession

E. g 1 -The Town and Country Planning

Ordinance of Sri Lanka introduce
restrictions in respect of interim
development of property. There statutes
declare that
“ No person shall at any time during the
period commencing for the preparation of a
planning scheme for any development area,
Erect, re-erect, demolish, alter or repair ay
structure in that area.
Layout, construct, widen, extend any road
in that area.
Develop any land in that area.”
Limitation of Ownership and Possession

E.g. 3 -The Radioactive

Minerals Act No. 46 of 1968
provides for the compulsory
acquisition by the state for the
contract of mining, production,
treatment and transport of
radioactive minerals.
Limitation of ownership
An owner of land has the right to build on
his land and acquires ownership of the
buildings. However modern law of Sri
Lanka contains several examples of
restrictions by the legislature on the right
to alienate property
E.g 4. The Paddy Lands Act(1956)
(abolished) makes provision in regards to
leases and changes in ownership of
controlled paddy lands.
Limitation of Ownership and Possession

E.g 4- Mines and Minerals

Act of Sri Lanka (1992) to
provide for the vesting of the
absolute ownership of certain
minerals in the Republic of
Sri Lanka, to regulate the
collection, sale and export.