Limitations on ownership

Limitations on ownership
• In the last presentation we defined ownership as providing the owner
with the most complete right in a thing,
• However, ownership is limited in various ways which prevents an
owner the full entitlements towards his property.
• These limitations are categorised under the following:
• Statutory limitations
• Creditor’s rights of third parties against the owner
• Limited real rights of third parties in the property
• Provisions of neighbour law
Statutory limitations
• There are a number of specific acts that limits the entitlements of an
owner towards his property.
• The reason for this is to ensure that an owner uses his property within the
interest of the community.
• These statutory provisions with specific reference to fixed property are:
• Taxation – levying of property taxes by government in order to provide for services to
the community.
• Restitution of Land Rights Act 22 of 1994 – for the restoration of land rights.
• Expropriation Act 63 of 1975 – enabling government to take land from owners,
subject to
compensation, in the interest of the community
• Physical Planning Act 125 of 1991 – to ensure that there is harmony in the use of
land by different
• owners in the interest of the broader community.
Statutory limitations Cont…
• Environment Conservation Act 73 of 1989 and National Environmental
Management Act 107 of 1998 – to effectively protect and control the use of
rural land.
• National Building Regulations and Building Standards Act 103 of 1977,
National Environmental Management: Air Quality Act 39 of 2004, Health Act
63 of 1977, Environment Conservation Act 73 of 1989 and Housing Act 107 of
1997 – Dealing with the regulation of the nature and standard of building in
urban areas.
• Various other acts, such as the Development Facilitation Act 67 of 1995, the
Land Reform (Labour Tenants) Act 3 of 1996, the Extension of Security of
Tenure Act 62 of 1997 and the Prevention of Illegal Eviction from and the
Unlawful Occupation of Land Act 19 of 1998.
Creditor’s rights of third parties against the
owner
• The entitlements of the owner of property could be limited by way of contract.
• Thereby a third person obtains a creditor’s right against the owner of the property, which
limits the owner’s entitlements.
• The most common example in the built environment would be a construction contract
whereby a contractor obtains a creditors right against the owner to perform construction
work and receive payment for it.
• Due to this process the owner has limited use of the property while the contractor is in
control of the property as a result of the construction work.
• Another example is where a property owner grants a short term lease to a tenant on his
property.
• During the period of the lease the owner cannot use and enjoy the property as it is
under the control of the tenant. It is important to note that with creditor’s rights of third
parties, the right is not enforceable against successors in title. Therefore the right cannot
be enforced against a next owner, should the property be sold, but the third party may
have a claim against the previous owner personally.
Limited real rights of third parties in the
property
• Limited real rights of third parties also limit the entitlements of the
owner, but it has distinct differences with creditor’s rights. These are
as follows:
• The limited real right is a right against the property and not against the owner
personally
• The right is enforceable against successors in title
• The right is registered against the title deed of the property (such as
mortgages and servitudes), except where it originated due to operation of law
(such as liens and hypothecs)
Neighbour law
• Neighbour law has very important implications for the owner of a property
and also specifically in the built environment.
• The principle of neighbour law originated in common law and implies that
no owner of property can use and enjoy his property to the extent that it
prejudices or burdens the use and enjoyment of another person on his
property. Five aspects are distinguished:
• Nuisance (a person or thing causing inconvenience to other people)
• Lateral and surface support (According to our law, a property owner has a right to
have his land supported at the boundaries by his neighbour's land, this is known as
lateral support. This means that an adjoining landowner cannot alter the boundary of
their property in a manner that may adversely affect or weaken their neighbour's
land)
• Encroachments
• Interference with the natural flow of water
• Elimination of danger
1. Nuisance
• Nuisance is defined as an occurrence where a person occupying land
creates a state of affairs, or allows such state of affairs to exist, that
unreasonably, unfairly and materially disturbs or annoys a person
occupying another piece of land.
Characteristics of Nuisance
• For an act to constitute nuisance there must be;
• A prima facie wrongful or it should be an unlawful interference with a
person or his property.
• Inconvenience or annoyance caused to another which the law considers as
substantial or material as opposed to sensitivity or delicacy.
2. Encroachments

• According to our Property Laws, encroachment is described as a

situation where the airspace over the neighbour's land is invaded by
objects originating from the land owner's property or where a
boundary line between properties is overreached
• The example of the encroachment could be buildings as well as
plants, roots, leaves and branches of trees.
• As regards buildings, no part of the building may exceed the
boundaries of the property, whether any part of the building above
ground, or the foundations below ground. Due to buildings being
such a fixed structure it is sometimes difficult to rectify the
encroachment
3.Lateral and surface support
• According to our law, a property owner has a right to have his land
supported at the boundaries by his neighbour's land, this is known as
lateral support
Example of lateral support
The remedies for rectifying the above
situations
• Removal of the encroachment
• Compensation to the owner
• Transfer of the encroaching section to the encroacher with
compensation to the owner
• Termination of occupation of the encroaching section by the
encroacher and
• compensation by the owner to the encroacher
The remedies for rectifying the above
situations Cont…
• Plants, leaves and branches of trees could be requested by the
aggrieved owner that the encroachment be removed.
• If this is not done within a reasonable time, a court order to affect
this can be obtained.
• With roots the aggrieved owner cannot request the encroacher to
remove the roots, but if the roots are causing damage to structures or
the nuisance caused warrants it, the owner can get acourt order for
the encroacher to remove the trees.
4.Interference with the natural flow of water
• The interference of natural flow of water is treated differently in
urban and rural land
• The essence of this is however that although a neighbour should in
the normal cause of events, accept natural water flowing from higher
lying properties, the natural flow of water may not be disturbed to
such an extent that the concentration, volume or direction of the flow
could cause damage or nuisance to a neighbouring property (e.g.
rechanneling flowing water to other person’s property)
5.Elimination of danger
• It is accepted that any owner of property may not do anything on his
property that could cause a dangerous situation for any neighbour or
to the public.
• This includes keeping of dangerous animals, or storage of explosives,
flammable liquids or other dangerous substances.
• In the built environment this is very important when considering the
use of explosives for demolition or excavation, storage of fuel for the
use in plant and equipment, certain equipment that needs careful or
specialised handling, etc. For these reasons there is legislation that
closely regulates these items, as well as health and safety regulations
in order to avoid dangerous situations.
THANK YOU FOR
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