10 Questions
What is the most obvious form of limitation imposed by the rights of other legal subjects?
Limited real rights
A limited real right is a right against the owner personally.
False
What is the main difference between a limited real right and a creditor's right?
A limited real right is a right against the property, whereas a creditor's right is a right against the owner personally.
The entitlements of the owner of property can be limited by way of _______________.
contract
Match the following examples with the type of limitation they demonstrate:
Construction contract = Personal rights Short term lease = Personal rights Mortgage = Limited real rights
What is the effect of a limited real right on the owner's entitlements?
The owner's entitlements are partially limited
A limited real right is enforceable against the original owner only.
False
What is the significance of registering a limited real right against the title deed of the property?
It ensures that the right is enforceable against successors in title.
A limited real right is a right against the property and not against the _______________.
owner personally
What is the main purpose of a construction contract in the context of property rights?
To grant a creditor's right to the contractor
Study Notes
Public Law Limitations
- Ownership may be limited by the State through constitutional limitations (S25; S36)
- Constitutional limitations:
- S25(1): No one may be deprived of property except in terms of law of general application
- S25(2): Property may be expropriated only in terms of law of general application for a public purpose or in the public interest, with compensation
Neighbour Law Limitations
- Regulates and harmonises conflicting ownership rights
- Examples of neighbour law applications:
- Nuisance
- Lateral support
- Encroachments
- Surface water
- Party walls and fences
- Elimination of dangers
- Nuisance: a state of affairs that unlawfully prejudices or disturbs another's enjoyment of their land
- Test for lawfulness: would an ordinary person in the position of the plaintiff have tolerated the conduct?
Limitations of Ownership
- Ownership is not absolute in nature
- Reasons for limitations:
- Protecting the environment
- Benefiting communities
- Regulating urbanisation
- Harmonising conflicting interests of individual owners
- Two opposing maxims:
- An owner has absolute power to use and enjoy their land
- An owner must exercise their powers of ownership without prejudicing their neighbours
Private Law Limitations
- Neighbour law limitations
- Limitations imposed by rights of other legal subjects
- Limited real rights:
- Rights in the property can be granted to someone else
- Examples: mortgages and servitudes
- Differences from creditor's rights:
- Right is enforceable against successors in title
- Right is registered against the title deed of the property
Personal Rights Limitations
- The entitlements of the owner of property can be limited by way of contract
- Examples:
- Construction contract: contractor obtains a creditor's right against the owner
- Short-term lease: owner's use of property is limited during the lease period
This quiz covers the limitations on property ownership imposed by the State, including constitutional limitations outlined in Section 25 and 36 of the Constitution.
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