Abstract
It is an accepted principle in South African law that movable property acquired in an original way (by operation of law) is not burdened by any limited real rights, as previous limited real rights are extinguished on the vesting of ownership (mobilia non habent sequelam). It is assumed by some South African writers that the same principles are applicable to the original acquisition of immovable property and that all existing limited real rights fall away on original acquisition of ownership. In this article the nature of limited real rights to immovable property is examined, and the notion that ownership is the "mother" right on which all limited real rights are based is scrutinised critically. The nature and establishment of limited real rights are used to distinguish between the essence and effect of limited real rights in the case of immovable property. The recognition of limited real rights as constitutional property is used as a further argument that limited real rights cannot be extinguished automatically by the original acquisition of immovable property, as such common law or statutory measures will constitute an arbitrary deprivation of property in terms of section 25 of the Constitution. The statutory provisions regarding limited real rights in the case of prescription and expropriation are then analysed as an indication that it is not a general principle that limited real rights are extinguished automatically on the original acquisition of ownership of immovable property.
Highlights
In the case of the derivative acquisition of ownership it is trite law that ownership of the property is transferred by the transferor to the new owner with the co-operation of the acquirer in terms of the real agreement between the parties.[1]
Circumstances where the property is in the physical control of the acquirer.[5]. It is assumed by some South African writers on the topic that ownership is acquired unburdened in the case of the original acquisition of immovable property it is not a foregone conclusion that this is in general the correct interpretation of the present legal position.[6]
Further on the judge found that "servitudes are 'praedial' because they are constituted in favour of a particular piece of land; but all servitudes are real rights and burdens upon the land which is subject to them".58. It was held: "These limitations in my opinion form a real burden, jus in re, on each undivided share, and not merely an obligation on the person of each child."[59] In the context of this case the essence of a limited real right is that it burdens the immovable property as object, but the effect of the burden upon the immovable is a subtraction from the dominium of the owner, which constitutes a limitation on the owner's entitlements
Summary
In the case of the derivative acquisition of ownership it is trite law that ownership of the property is transferred by the transferor to the new owner with the co-operation of the acquirer in terms of the real agreement between the parties.[1]. The legal position in the case of the original acquisition of ownership is more complicated, as ownership is vested in the new owner by operation of law and not by transfer of the right by the previous owner. This article deals with the effect of the original acquisition of ownership by means of prescription and expropriation on existing limited real rights to immovable property. These two forms of original acquisition of ownership are both regulated statutorily. In order to determine what the effect of the original acquisition of ownership of immovable property on existing limited real rights is, the following aspects will be examined: the nature of limited real rights to immovable property, with reference to the relationship between the owners and holders of limited real rights and the constitutional protection of limited real rights; limited real rights as a burden to the property; and the statutory provisions in the case of the original acquisition of immovable property by means of prescription and expropriation
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