ASSIGNMENT 01
LAW OF PROPERTY
QUESTION ONE
A real right derives from a relationship between a legal subject and a corporeal thing, where
the legal subject has direct control, claim, and right of disposal over a thing which we then
refer to as a “real right” being created between the legal subject and thing. An example of a
real right is ownership, where the legal subject has complete control over their own thing.
A personal right arises by an obligation/performance in which a relationship is created
between two legal subjects by a contract or delict, as well as in other instances. It is where
one legal subject can claim performance to do or not do something, from the other, vice
versa, which creates a personal right for each of the legal subjects which are relative in
principle and can only be enforced against the person who has to perform in terms of an
obligation. An example of a personal right arises from a contract or delict.
QUESTION TWO
Ownership is a real right to one’s own thing, while limited real rights are real rights to another
person’s thing. Ownership is the most comprehensive real right a person can have to a thing
while limited real rights are fundamentally limited. An example would be in principle the
owner of a piece of land can use it as they wish (real right), but a tenant would be restricted
in their entitlements (limited real right).
QUESTION THREE
MRS Annie Hendricks had a limited real right due to the fact that she sold her property to her
son and agreed to lifelong right to habitation on the property in the titles deed
According to paragraph 6 in the case of Hendricks v Hendricks a limited real right of
habitation refers to a situation where the holder of this right may dwell in the house of
another without detriment to the substance of the property.1
QUESTION FOUR
MS Magaret Hendricks and MR Graham Hendricks have both had real rights of ownership
before they got divorced due to the fact that they were married in community of property.
According to paragraph 7 in the case of Hendricks v Hendricks, it is established that
ownership is the most comprehensive real right and that all other real rights are derived from
it, therefore since a limited real right would be derived from a real right and Ms Magaret
Hendricks possesses a real right of ownership and MRS Annie Hendricks possesses a
limited real right of habitation, MS Magaret Hendricks may not have full control or occupy the
property without the consent of the holder of the right of habitation.2
QUESTION FIVE
5.1.
In Ex Parte Geldenhuys the court formulated the subtraction from the dominium test which
basically advises to focus more on the correlative obligation rather than the right in issue, in
other words, if the right has some obligation or burden over a piece of land/property/any
1
Hendricks v Hendricks (2016 (1) SA 511 (SCA)).
2
Hendricks v Hendricks (2016 (1) SA 511 (SCA)).
LAW OF PROPERTY
QUESTION ONE
A real right derives from a relationship between a legal subject and a corporeal thing, where
the legal subject has direct control, claim, and right of disposal over a thing which we then
refer to as a “real right” being created between the legal subject and thing. An example of a
real right is ownership, where the legal subject has complete control over their own thing.
A personal right arises by an obligation/performance in which a relationship is created
between two legal subjects by a contract or delict, as well as in other instances. It is where
one legal subject can claim performance to do or not do something, from the other, vice
versa, which creates a personal right for each of the legal subjects which are relative in
principle and can only be enforced against the person who has to perform in terms of an
obligation. An example of a personal right arises from a contract or delict.
QUESTION TWO
Ownership is a real right to one’s own thing, while limited real rights are real rights to another
person’s thing. Ownership is the most comprehensive real right a person can have to a thing
while limited real rights are fundamentally limited. An example would be in principle the
owner of a piece of land can use it as they wish (real right), but a tenant would be restricted
in their entitlements (limited real right).
QUESTION THREE
MRS Annie Hendricks had a limited real right due to the fact that she sold her property to her
son and agreed to lifelong right to habitation on the property in the titles deed
According to paragraph 6 in the case of Hendricks v Hendricks a limited real right of
habitation refers to a situation where the holder of this right may dwell in the house of
another without detriment to the substance of the property.1
QUESTION FOUR
MS Magaret Hendricks and MR Graham Hendricks have both had real rights of ownership
before they got divorced due to the fact that they were married in community of property.
According to paragraph 7 in the case of Hendricks v Hendricks, it is established that
ownership is the most comprehensive real right and that all other real rights are derived from
it, therefore since a limited real right would be derived from a real right and Ms Magaret
Hendricks possesses a real right of ownership and MRS Annie Hendricks possesses a
limited real right of habitation, MS Magaret Hendricks may not have full control or occupy the
property without the consent of the holder of the right of habitation.2
QUESTION FIVE
5.1.
In Ex Parte Geldenhuys the court formulated the subtraction from the dominium test which
basically advises to focus more on the correlative obligation rather than the right in issue, in
other words, if the right has some obligation or burden over a piece of land/property/any
1
Hendricks v Hendricks (2016 (1) SA 511 (SCA)).
2
Hendricks v Hendricks (2016 (1) SA 511 (SCA)).
