The effect of the original acquisition of ownership of immovable property on existing limited real rights
MetadataShow full item record
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.
Showing items related by title, author, creator and subject.
Maboe, Tshose Phillip, 1965- (North-West University, 2013)The global approach that pleads for the equality of all human beings and respect for human rights reaches children as well. Universal human rights should be awarded to all people and for all institutions, and, therefore, ...
De Freitas, S A; Myburgh, G A (2011)International human rights instruments and jurisprudence radiate an understanding of international law as also serving to protect fundamental rights and the interests of the individual. The idea that human rights provide ...
Rudman, Annika (2016)The African Commission on Human and Peoples' Rights has worked as the continent's watchdog, under the ACHPR, for almost 30 years. Much has changed since the time of its inception. More institutions, set to ensure the ...