Bridging the Divide between Rights In Personam and Rights In Rem in Land Transactions: A Comparative Perspective of Australian and South African Law

Abstract

In transactions relating to land a distinction is made between the creation of personal or contractual rights (rights in personam) by contract, and real rights (rights in rem) via the registration process. Historically, additional, or special rights or interests have been conferred upon the vendor and purchaser to provide protection for the time period between the creation of rights in personam and the creation of rights in rem. The focus of this article is to identify and examine the nature and operation of these protective rights and compare their application in Australia and South Africa. These protective rights are recognised in different ways in both Australia and South Africa via common law, equity and legislation. It is concluded that interim protective equitable rights in Australia and a special category of personal rights under South African law provide a bridge to the creation of full in rem rights.