Ley General del Equilibrio Ecológico y Protección al Ambiente

A putative cause is required for the effectiveness of such a transfer

There may be direct evidence of an intention to pass and acquire ownership

If this is so then there is no need to rely on preceding legal transactions to show ownership has passed

5. Real Agreement – Vitiating Circumstances

If an underlying contract it does not necessarily apply to the real agreement and the transfer of the real right can continue

If the real agreement is defective the transfer of the real right cannot continue

Good Faith or Doctrine of Notic e

The DoN is compared with constructive notice

• Constructive Notice – this is the presumption of knowledge, s7 of the DRA.

• The DoN – this has been applied if a purchaser acquires ownership of a thing sold knowing:

oThat it has been previously sold to another person;

oThat the acquisition is in conflict with a holder’s right of option or pre-emption or with a duty imposed on the seller not to sell without the consent of another person;

oOf the right of a lessee to occupy the thing sold

• Application of the DoN takes place by forcing the acquirer of the real right to give

affect to the earlier personal rights, as stipulated below:

a. A successive sale – a seller sells a thing to A and then subsequently sells the same thing to B and gives him delivery or transfer thereof. A would be entitled to claim cancellation of the second sale and delivery to B, if B had known of the first sale to A. Situations may arise where B has no knowledge of the fact that the owner is already in a contract. B is known to be acting in good faith. The general rule is that the purchaser’s bona or mala fides must be determined as at the time he takes delivery or transfer (for immovables).

b. Unregistered Servitude – if A and B enter into an agreement where A

becomes entitled to have a servitude registered over the land of B, A now has a personal right to claim that B should co-operate in registration because this is a requirement in the creation of a servitude. Once registration has been completed any subsequent purchaser of the land will automatically be bound by the servitude as the object is the land itself. However if B sells his land to C before registration, C’s knowledge or ignorance of A’s potential real right is important. The object of A’s personal right from his agreement with B is a performance to be done by B only and not the land. If a person is aware of an unregistered servitude when buying property, the third party can apply for

that servitude to be registered. But if he is unaware, that application cannot be made.

c. Leases where the Huur Gaat Voor Koop – in a long lease of land a lessee is protected by the HGVK rule once the lease has registered in accordance with the DRA, or in absence of registration, for the first 10 years of the lease when possession is taken place. In the case of a short lease the lessee is protected by the HGVK rule when possession has taken place. In these circumstances the lessee has a real right and a subsequent purchaser will take transfer of the land subject to the lease. However before application of the rule the lessee has a personal right only and performance is

to be done by the lessor and not the land itself.

d. Sale in Conflict with an option, pre-emption or duty not to sell without prior consent will be declared null and void and entitle the holder of the prior personal right to claim transfer or delivery of the thing.

e. Sale in conflict with a right of security - the new owner is bound to perfect real security rights to which the predecessor was bound if he had prior knowledge of it.

• Foundation and Requirements of the Doctrine of Notice –

oExistence of prior personal right against holder of a real right

oInfringement of a personal right by subsequent acquirer of land

oKnowledge of existence of prior personal right by acquirer of real right

7. Ownership: General Principles

Concept of Ownership

Ownership is a real right embracing the power to use (ius utendi), to enjoy the fruits (ius fruendi), consume the fruits (ius abutendi), to possess (ius possidendi), to dispose of (ius dispondendi), to reclaim the thing from anyone who wrongfully withholds it (ius negandi).

Ownership is an absolute exclusive and an absolute right.

• Absolute in the sense that an owner can do whatever he pleases with the object of his ownership. However the absolute entitlement exists within the boundaries of the law, restrictions can come either from objective

law or restrictions placed upon it by the rights of others. Therefore no owner never has the unlimited right to exercise the entitlements in absolute freedom and in his own discretion (Gien v Gien)

The content of ownership is determined within the context of each individual case and 2 aspects must be looked at – entitlements and limitations.

1. Entitlements of the owner:

a. Control allows the owner to physically control and keep a thing

b. Entitlement to use is the right to use and benefit from a thing

c. The entitlement to encumber is the right to grant limited real rights in respect of the thing

d. Entitlement to alienate is the right to transfer the thing to someone else

e. Entitlement to vindicate is the unique right of the owner to claim a thing from another person.

These entitlements can be limited by statutory measures, limited real rights of other persons or personal rights of other persons against the owner:

• Limited real rights limit the owner’s dominium in terms of subtraction and are enforceable against the owner’s successors in title.

• Personal rights do dot limit the dominium of the owner and are not enforceable against successors.

Ownership does not consist of a bundle of entitlements which can be separated. It is an

abstract concept and always implies a subject-object and a subject-subject relationship.

Therefore the content of ownership varies because the entitlements of the owner vary from time to time regarding the same relationship. Entitlements are not the essence of ownership but they determine the extent of the legal relationship between the owner and the thing at a certain time.

2. Limitations imposed on ownership:

Ownership must be exercised subject to the requirements of objective law and the rights of 3^rd parties. Therefore entitlements must be exercised in accordance with the social function of the law in the interest of the community. This means that ownership may be infringed in the interest of the community

but must always be reasonable and equitable.

These limitations may be divided into 4 categories:

a. Public Law Limitations – (statutory limitations) imposed on all owners of a particular kind of property for the benefit of society of a whole or in the interest of certain sections of society. Ownership may be limited by the state. E.g. mining and water laws and marketing regulations.

i. Constitutional limitations allow for deprivation or expropriation (s25)

ii. PE Municipality case – statutory restrictions such as PIE where the interests of landowners have to be weighed up against the interest of the squatters during eviction applications.

In this case an eviction order the

granted in favour of the landowner, but the order was suspended due to the squatters’ right to housing.

iii. Limited Real Rights of 3^rd Parties – these limitations limit the owner’s ownership (dominium) since it is a real burden on the thing (subtraction).

It is enforceable against the owner and his successors in title. These limitations are created in the case of immovable property by registration in the deeds registry and movables by delivery. E.g. real servitudes such as a right of way or personal servitudes.

b. Private Law Restrictions – ownership is limited in the interest of private individuals. These are found in the sphere of neighbour law which is aimed at

achieving harmony between neighbouring landowners. This rule can also fall under delictual liability if damage is negligently caused. In terms of the rules of necessity the window of a neighbour may be broken in order to summons the fire brigade or extinguish the fire.

Neighbour Law

Neighbour law allows for ownership to be limited not in the interests of the community, but in the interests of neighbours.

The Purpose

This is to create harmony between neighbours by weighing the rights and obligation in the exercise of entitlements against each other in

order to balance conflicting ownership interests.

Nuisance

The basis of neighbour law is that land must be used in such a way that another person is not prejudiced or burdened. E.g. smoke smells, noise, unpleasant displays. Nuisance can be described by 2 instances, a narrow sense or a broad sense.

1. Narrow Sense

This is an infringement on the neighbour’s use and enjoyment of his land which constitutes an infringement of a personality right (e.g. his health) or an entitlement of use (e.g. the right to the undisturbed enjoyment of his property).

These infringements can be prevented by an

interdict. Reasonableness is used as a point of departure:

a. The nuisance must be repetitive or continuous because a single action of short duration must be tolerated, except if there is a reasonable expectation that the activity will be repeated.

b.Only annoying actions are unreasonable if the community is of that opinion.

c. The action or activity must be a nuisance according to a normal person.

d.The location of the properties and whether they are residential, business or industrial areas are important in determining reasonable actions.

Case Law

• Dorland v Smit: this case illustrates nuisance of unpleasant display. Two neighbours’

property was divided by a common property wall one owner put up an electric fence with signs. The other owner objected as the fencing causing potential danger to his gardener, visitors and grandchild. The court looked at if the activity of the offending owner exceeds that which the complainer could reasonably be expected to tolerate. The court held that the offender was exercising his rights of ownership.

• Rademeyer v Western Districts Council: the applicant was not successful with an interdict to prohibit noise, water and air pollution by

squatters because he was not able to prove that the nuisance would be permanent. The court also considered ESTA.

• Gien v Gien: the respondent erected an apparatus producing loud explosives to scare away baboons from his vegetable garden.

The machine worked day and night and disturbed the neighbours. The respondent could muffle the machine or switch it off at night without impairing its effectivity. It was decided that there were requirements for interdict

oThe applicant must prove a clear right oThe respondent must intrude upon that

right

oNo other remedy must provide satisfactory protection of the right

The court also assessed the following questions:

oWere the acts of the respondents reasonable and fair?

oDid the respondent act in bad faith or with expressed single intention to cause discomfort for the plaintiff?

oWas the respondent’s use of his property normal?

oWere the respondents actions harmful to the other party because he is an abnormally sensitive individual or would they have had the same reaction upon the normal and not unduly sensitive person?

2. Broad Sense

This is an infringement of the neighbour’s exercise of entitlements in general, or actions by the neighbouring owner that caused damage. Compensation can be claimed or the infringement can be prohibited with an interdict.

• Damages are claimed with the Actio Legis Aquiliae

Nuisance in the wide (broad) sense which causes damage to the neighbour constitutes a delict. Delict has 5 elements:

o An act or omission;

o Which violates the law (unlawfulness);

o Committed in a culpable way (intent or negligence);

o Damage or injury to the injured party.

Case Law

• Regal v African Superslate: the predecessor of the respondent allowed slate waste to accumulate in a place from where it was being washed onto the appellant’s land. The omission to prevent this spillage was unlawful but because it was expensive and unpractical (therefore unreasonable) to expect prevention, the appellant’s application was denied. It was decided:

o The EL regarding nuisance does not form part of SA CL, and reasonableness must be made on the basis of RD principles.

o Reasonableness is the determining criterion in the weighing of interests

of neighbouring owners and occupiers.

I.e. the exercise of entitlements must be within reasonable limits and the neighbour must tolerate this within reasonable limits.

o Where the unlawful actions of the neighbouring owner caused damage to his owner, liability is determined with reference to Actio Legis Aquiliae

Lateral and Surface Support

A land owner is entitled to the support supplied by the land of the neighbour for land.

Therefore there is an obligation on neighbours

to use their own land in the way that the lateral and surface support is not undermined by excavations for building or mining.

• RL: Roman jurists asked if the offending owner acted unlawfully – fault was not a requirement. Other determining factors were:

oThe magnitude and immediacy of the damage

oThe question whether the offending use was normal?

oThe motive of the offender

oThe real advantage of the offender

oThe prejudice suffered by the injured party

• RDL: the courts found that the very sections used in RL were no longer known by their names but their underlying principles were accepted into RDL. E.g. property should not be used to injure other people

• EL: the court stated that the duty of lateral support was inspired by EL.

• SAL: the following principles are applied:

o It is only necessary to prove that the neighbour has disturbed the lateral and surface support, and not culpability – Demont v Akal Investments. The plaintiff alleged as a result of the defendant’s excavation, he removed earth from the vicinity of the plaintiff’s house and negatively deprived the plaintiff of lateral support. Consequently the plaintiff’s house subsided, walls cracked and the building was condemned by the local municipality.

o The plaintiff need not prove wrongfulness, but must prove that the damage has been caused by the removal of lateral support – Gijzen v Verrinder

oLiability of the actor is not based on delict but on the interference of the right by the owner.

o The duty of lateral support applies only to land in its natural state and not in respect of buildings and additions. If excavations on neighbouring land caused damage to buildings, the owner of the land on which the building is situated has no claim.

Encroachments

These can be from buildings or from the branches or roots from plants planted on the neighbouring land. SAL recognises the rule that the land owners entitlements extend into the air above and the earth below the land.

Interference of these entitlements can result in remedies.

• Buildings: CL allows the land owner to build on his land but may not exceed the vertical boundaries of his boundaries. The foundations of the buildings or additions may not exceed the boundaries below the ground nor in the air. The following are remedies for such encroachments:

oRemoval of the encroachment – the owner may demand the encroachments to be removed although he doesn’t have to do it himself. Reasonableness and fairness are determined by the lapse of time since the owner became aware of the encroachment;

the nature and degree of the encroachment; and the cost of removing

the encroachment in relation to damages suffered by the owner.

oCompensation – this can be awarded to the land owner if he did not exercise his right to removal or if it would be unreasonable to demand removal.

oTransfer and compensation – the defendant can be ordered to take transfer of the part of the land on which the encroachment took place for compensation. The compensation thus includes the cost of transfer, the value of the part without the encroaching improvement and payment of damages because the encroaching action took away part of the land owners land.

oTermination and compensation – the land owner can terminate the defendants

occupation of the encroaching building but must compensate the defendant for the value of improvements made on his land.

This only applies if the encroachment constitutes an independent building and is not a slight encroachment forming part of the building on the neighbouring land.

• Branches, Leaves and Roots: where the branches and leaves of plants encroach on the air above the landowners land or if the roots encroach on the land under the surface, the following remedies are used:

oThe landowner can request the owner of the neighbouring land to cut off or remove the encroaching branches. If this is not done within a reasonable time the landowner can ask for an order to remove the encroachments himself.

oIf the plants are planted on the neighbours land these will become the property of the neighbour, who can then remove or keep them

oIf the roots of trees planted on the neighbours land encroach on the land of a land owner, he can remove the roots himself.

Co-Ownership

Definition

Two or more persons cannot simultaneously exercise different kinds of ownership regarding the same object, but may be co-owners of a thing at the same time. Co-co-owners cannot divide the thing physically whilst the co-ownership still exists, and a co-owner cannot alienate the thing without the consent of the other co-owner. However a co-owner can alienate his undivided co-ownership share.

The entitlements are exercised jointly in accordance with the undivided shares. No one co-owner has the right to change the character of the property e.g. an agricultural farm cannot

be changed into a grazing field by a single co-owner. Co-ownership is established in the following ways:

• Inheritance: when a testator leaves an indivisible thing to more than two people provided that it may not be divided, it is owned by the heirs in co-ownership

• Conclusion of a marriage in community of property: this implies that the parties are co-owners of all things in the common estate in equal, undivided shares

• Mixing: this is when different things of different owners are mixed, the mixed thing mixes in such a way that a new thing is created. The previous owners of the mixed things become co-owners in relation to their contribution.

• Estate holdership: the spouse of the deceased continues the community of property with their heirs of the deceased spouse

• Voluntary association without legal personality: the members of an association are co-owners of the assets of the association in undivided shares. Such a co-owner may not alienate his undivided share.

• Contract: this is a means by which two or more people can jointly buy a thing and have the ownership transferred in undivided shares through delivery or registration

Kinds of Co-Ownership

There are 3 kinds of ownership, these are: free co-ownership, bound co-ownership and common co-ownership

In document I. DATOS GENERALES DEL PROYECTO, DEL PROMOVENTE Y DEL RESPONSABLE DEL ESTUDIO DE IMPACTO AMBIENTAL (página 101-104)