Ownership is a real right that cedes absolute control over a specific property. An owner is entitled to possess and occupy his property. It is, however, possible to possess a property and not occupy it, and to occupy it and not possess it. Two interesting points is, firstly, both possession and occupation requires some form of physical control whether directly (physical occupation) or indirectly (owner has the keys to the property). Secondly, the difference in terms of these is the possessorís intention to be the owner while the occupierís intention is to gain some benefit from occupying the property. In order to understand the network of rights in property, an organizational chart delineating the different types of rights would assist in this process (see Fig. 1 below).
At common law the owner can operate in the following capacities in terms of his property:
- The right to occupy and possess the property: This means that the owner is entitled to be physically present on his property and to develop it to any permissible optimal level.
- The right to use and enjoy the property and to exclude others: means that the owner may use his property for any ordinary and natural purpose and that he is entitled to enjoy his property and its fruits. He is entitled to plant and sow the land, to build on it and to use water on and beneath the land surface.
- The right to dispose of the property: This means that the owner is entitled to transfer his land to another, to subdivide the property and to encumber it by granting to others limited real rights in the property such as servitudes, leases and mortgages.
- The right to destroy the property: Although, in principle, an owner is free to destroy his property as he pleases, the right to destroy is subject to certain statutory prohibitions and other limited real rights which may be held over the property, such as a mortgage.
- The owner of the land is owner of the land surface and all plants and crops on the property.
Certain common law restrictions such as the law of neighbours are to be upheld by owners of property as to equally promote the rights of all owners:
- The obligation to refrain from causing a nuisance: The owner of [a] property is not entitled to use his property in a manner which interferes with the use and enjoyment of their properties by neighbouring owners. If he acts in such a manner, he is said to cause a nuisance and legal steps can be taken against him. A nuisance is caused only if an owner uses his property unreasonably. The standard which is applied to determine whether a particular use of property is unreasonable or not, is not the standard of the perverse or over-scrupulous person, but of the normal person of sound tastes and habits.
- The obligation to support the adjoining property: A landowner normally is entitled to require the owners of land adjoining his to provide the necessary support to maintain his land in a stable condition.
- The obligation not to interfere with the natural flow of water: The owner of [a] property is not entitled to interfere artificially with the natural flow of water on his property if this would prejudice his neighbor. One cannot, therefore, channel rainwater through a pipe on to a neighbourís property. On the other hand, a landowner is obliged to accept all rainwater which flows naturally on to his land from adjoining properties. He is not obliged, however, to accept all types of water (such as refuse water) on to his property.
- The obligation not to encroach on another personís property: An owner is obliged to build within the limits of his property. Buildings may not encroach on the property of a neighbouring landowner. Where there is such an encroachment and the owners cannot agree what should be done, a Court order may be obtained ordering the removal of the encroachment. The Court has a discretion, however, to order payment of damages in lieu of removal. It has also been held that in certain circumstances a neighbor can be compelled to take transfer of the portion of the property encroached upon.
- The obligation to avoid a dangerous situation arising on [the] property: A landowner is obliged to take reasonable precautions to avoid the possibility that other people may be injured as a result of a dangerous situation on his property.
The general characteristics of a real (praedial) servitude:
- A praedial servitude is a limited real right constituted in favour of the owner of a property in his capacity as such. The servitude entitles him to exercise some right on the property of another, or to prohibit another landowner from exercising one or other normal ownership right. There is no fixed number of praedial servitudes. Moreover, a praedial servitude can have virtually any conceivable content. However, there are some requirements:
- There must be two tracts of land or erven, the so-called dominant tenement and the servient tenement. The servitude primarily benefits the person who is the owner of the dominant tenement, although the servitude may be made use of not only by the owner of the dominant tenement, but by any person who has a legal right to be upon the dominant tenement, such as employees, guests, and visitors.
- The servitude must offer some advantage, either present or future, to the dominant tenement whereby its value or the enjoyment to be derived from it is increased.
- A praedial servitude can be granted in perpetuity or for a limited period only, for example 10 years.
- A praedial servitude cannot compel the owner of the servient tenement to do something positive on his property. He can be expected only to allow someone to do something (termed a positive servitude) on his property or to refrain from doing something himself (termed a negative servitude).
- A praedial servitude is indivisible. This means that a joint owner of the dominant tenement cannot acquire a servitude in favour of his undivided share only. Similarly, a joint owner of the servient tenement cannot grant a servitude over his undivided share only. The joint owners of both the dominant and servient tenements would have to co-operate before a servitude can be granted in favour of a dominant tenement over the servient tenement.
- Various types of servitudes exist such as servitudes of way, water, grazing, outspan, gathering of raw materials, regulating building activities, and relating to sewage, drain- and stormwater.
The general characteristics of a personal servitude:
- A personal servitude is a limited real right entitling the holder in his personal capacity to exercise some right in the property of another, or to prohibit another landowner from exercising one or other normal ownership right. Two ervens are not required for the establishment of a personal servitude: the personal servitude is constituted in favour of a particular individual.
- A personal servitude is not granted in perpetuity. The servitude can be granted for a specific period; if no period is specified, it terminates on the death of the holder of the servitude. A servitude granted to a legal person terminates after 100 years.
- Once acquired a personal servitude cannot be alienated or transferred to someone else.
- A personal servitude is divisible meaning that it can be granted on an undivided share in [the] property which is held in joint ownership.
- The most common forms of personal servitudes are usufruct, use and habitatio. Usufruct is a personal servitude in terms of which the usufructuary (the holder of the servitude) is entitled to use and take the fruits of another personís property. Fruits here mean natural fruits such as crops, or civil fruits such as the interest earned on capital invested or the rental received on a lease of immovable property. Use confers the right to use the property of another person for daily needs. The holder of the right is entitled only to those fruits that provide him and his family with the necessities of life. Surplus fruits cannot be sold, nor can the holder of the right alienate or let his use. Habitatio is the right to occupy or let another personís house. The holder of the right cannot allow strangers to stay in the house free of charge. He is also not entitled to gather fruits from the property for his daily use.
A public servitude is a right constituted in the favour of the general public. For example a public outspan, common pasturage, public roads, etc.
Reference: Delport, HJ. 2001. South African Property Practice and the Law: A Practical Manual for Property Practitioners. South Africa: Juta.