LAW OF PROPERTY – POSSIBLE EXAM Qs
THEORY QUESTIONS
1. Distinguish between a real right & entitlements and give an example of each. (4)
A REAL RIGHT IS A LAWFUL REAL RELATIONSHIP BETWEEN A LEGAL SUBJECT AND A THING
WHICH CONFERS DIRECT CONTROL OVER THE THING ON THE LEGAL SUBJECT, AS WELL AS
THE RELATIONSHIP BETWEEN THE LEGAL SUBJECT AND ALL OTHER LEGAL SUBJECTS WHO
MUST RESPECT THIS RELATIONSHIP.
THE TERM ENTITLEMENT REFERS TO THE CONTENT OF A RIGHT. THE ENTITLEMENTS OF A
REAL RIGHT DETERMINE WHICH ACTS A LEGAL SUBJECT MAY PERFORM IN REGARD TO A
THING, E.G. MAY SELL OR USE THE THING.
2.1 Distinguish between land (praedial) & personal servitudes. (4)
I) LAND SERVITUDES ARE CREATED IN FAVOUR OF A PIECE OF LAND. PERSONAL SERVITUDES
BENEFIT SOMEONE IN THEIR PERSONAL CAPACITY.
II) LAND SERVITUDES LAST INDEFINITELY. PERSONAL SERVITUDES CAN BE GRANTED ONLY
FOR A SPECIFIC PERIOD (NOT MORE THAN THE HOLDER’S LIFETIME OR 100 YEARS IF A
LEGAL PERSON).
III) LAND SERVITUDES MAY BE ESTABLISHED OVER IMMOVABLE THINGS ONLY. PERSONAL
SERVITUDES MAY BE ESTABLISHED OVER MOVABLES AND IMMOVABLES.
IV) LAND SERVITUDES ARE ALIENATED TOGETHER WITH THE LAND. PERSONAL SERVITUDES
ARE INSEPARABLY ATTACHED TO THE HOLDER’S PERSON AND ARE IN NO WAY
TRANSFERABLE.
2.2 Name 3 common characteristics of land (praedial) & personal servitudes. (3)
I) BOTH ARE REAL RIGHTS
II) NO ONE CAN ESTABLISH SERVITUDE OVER OWN PROPERTY
III) SERVITUDE CANNOT BE ESTABLISHED OVER ANOTHER SERVITUDE
3. Distinguish between ownership & the entitlements of ownership. (4)
OWNERSHIP IS THE (MOST COMPREHENSIVE) REAL RIGHT A PERSON CAN HAVE WITH
REGARD TO A THING. THE CAPACITIES CONFERRED ON THE PERSON BY VIRTUE OF THE
RIGHT OF OWNERSHIP ARE CALLED ENTITLEMENTS. ENTITLEMENTS OF OWNERSHIP
THEREFORE EMANATE FROM THE RIGHT OF OWNERSHIP.
ENTITLEMENT EXAMPLES: USE (DRIVE YOUR CAR); ALIENATE (SELL OR DONATE YOUR CAR);
CONSUME OR DESTROY (BURN YOUR TEXTBOOKS).
, 4. Explain the difference between bound co-ownership and free co-ownership with
reference to examples. (4)
IN FREE CO-OWNERSHIP, THE CO-OWNERSHIP IS THE ONLY RELATIONSHIP BETWEEN THE
CO-OWNERS, E.G. Q AND R PURCHASED A FARM JOINTLY BEFORE THEY WERE MARRIED.
BOUND CO-OWNERSHIP EXISTS WHERE THERE IS AN UNDERLYING LEGAL RELATIONSHIP
BETWEEN CO-OWNERS WHICH DETERMINES THE BASIS OF THEIR CO-OWNERSHIP, E.G. A
MARRIAGE IN COMMUNITY OF PROPERTY.
5. Distinguish between original & derivative methods of acquisition of ownership. (4)
ORIGINAL METHODS ARE USED WHEN THERE IS NO CO-OPERATION FROM A PREDECESSOR
IN TITLE; IN OTHER WORDS THERE IS NO TRANSFER OF OWNERSHIP. THIS FORM OF
ACQUISITION IS NOT LIMITED TO THINGS BELONGING TO NO-ONE. E.G. APPROPRIATION.
DERIVATIVE METHODS OCCUR WITH THE CO-OPERATION OF A PREDECESSOR IN TITLE. THE
PREDECESSOR IN TITLE SHOULD HAVE BEEN THE OWNED AND ENTITLED TO TRANSFER
OWNERSHIP (NO-ONE CAN TRANSFER MORE RIGHTS TO ANOTHER THAN HE HAS HIMSELF).
THE RIGHT IS TRANSFERRED TO THE NEW OWNER WITH THE ADVANTAGES AND
DISADVANTAGES ATTACHED TO THAT RIGHT. E.G. BUYING SOMEONE’S CAR.
6. Distinguish between possession and holdership/with specific reference to the mental
element (animus). (4)
POSSESSION IS THE PHYSICAL CONTROL OF A THING WITH THE INTENTION OF THE OWNER.
IT IS ALWAYS UNLAWFUL AND THEREFORE ONLY A REAL RELATIONSHIP, NOT A REAL RIGHT.
HOLDERSHIP IS THE PHYSICAL CONTROL OF A THING WITH THE INTENTION TO DERIVE A
BENEFIT. IT COULD BE LAWFUL OR UNLAWFUL. A LAWFUL HOLDER HAS A REAL RIGHT. AN
UNLAWFUL HOLDER HAS A REAL RELATIONSHIP.
7. Name the requirements for successful reliance on the condictio furtiva. (5)
I) OWNERSHIP OR RETENTION OF A LAWFUL INTEREST FROM THE DATE OF THE THEFT TO
THE DATE OF THE INSTITUTION OF THE ACTION.
II) THEFT OR REMOVAL OF THE THING WITH DECEITFUL INTENT.
III) IF THE ACTION IS NOT INSTITUTED AGAINST THE THIEF OR DECEITFUL REMOVER, THAT
THE DEFENDANT IS THE HEIR OF THE FORMER.
8.1 Name the requirements for a successful reliance on the rei vindicatio. (3)
PLAINTIFF MUST PROVE:
THEORY QUESTIONS
1. Distinguish between a real right & entitlements and give an example of each. (4)
A REAL RIGHT IS A LAWFUL REAL RELATIONSHIP BETWEEN A LEGAL SUBJECT AND A THING
WHICH CONFERS DIRECT CONTROL OVER THE THING ON THE LEGAL SUBJECT, AS WELL AS
THE RELATIONSHIP BETWEEN THE LEGAL SUBJECT AND ALL OTHER LEGAL SUBJECTS WHO
MUST RESPECT THIS RELATIONSHIP.
THE TERM ENTITLEMENT REFERS TO THE CONTENT OF A RIGHT. THE ENTITLEMENTS OF A
REAL RIGHT DETERMINE WHICH ACTS A LEGAL SUBJECT MAY PERFORM IN REGARD TO A
THING, E.G. MAY SELL OR USE THE THING.
2.1 Distinguish between land (praedial) & personal servitudes. (4)
I) LAND SERVITUDES ARE CREATED IN FAVOUR OF A PIECE OF LAND. PERSONAL SERVITUDES
BENEFIT SOMEONE IN THEIR PERSONAL CAPACITY.
II) LAND SERVITUDES LAST INDEFINITELY. PERSONAL SERVITUDES CAN BE GRANTED ONLY
FOR A SPECIFIC PERIOD (NOT MORE THAN THE HOLDER’S LIFETIME OR 100 YEARS IF A
LEGAL PERSON).
III) LAND SERVITUDES MAY BE ESTABLISHED OVER IMMOVABLE THINGS ONLY. PERSONAL
SERVITUDES MAY BE ESTABLISHED OVER MOVABLES AND IMMOVABLES.
IV) LAND SERVITUDES ARE ALIENATED TOGETHER WITH THE LAND. PERSONAL SERVITUDES
ARE INSEPARABLY ATTACHED TO THE HOLDER’S PERSON AND ARE IN NO WAY
TRANSFERABLE.
2.2 Name 3 common characteristics of land (praedial) & personal servitudes. (3)
I) BOTH ARE REAL RIGHTS
II) NO ONE CAN ESTABLISH SERVITUDE OVER OWN PROPERTY
III) SERVITUDE CANNOT BE ESTABLISHED OVER ANOTHER SERVITUDE
3. Distinguish between ownership & the entitlements of ownership. (4)
OWNERSHIP IS THE (MOST COMPREHENSIVE) REAL RIGHT A PERSON CAN HAVE WITH
REGARD TO A THING. THE CAPACITIES CONFERRED ON THE PERSON BY VIRTUE OF THE
RIGHT OF OWNERSHIP ARE CALLED ENTITLEMENTS. ENTITLEMENTS OF OWNERSHIP
THEREFORE EMANATE FROM THE RIGHT OF OWNERSHIP.
ENTITLEMENT EXAMPLES: USE (DRIVE YOUR CAR); ALIENATE (SELL OR DONATE YOUR CAR);
CONSUME OR DESTROY (BURN YOUR TEXTBOOKS).
, 4. Explain the difference between bound co-ownership and free co-ownership with
reference to examples. (4)
IN FREE CO-OWNERSHIP, THE CO-OWNERSHIP IS THE ONLY RELATIONSHIP BETWEEN THE
CO-OWNERS, E.G. Q AND R PURCHASED A FARM JOINTLY BEFORE THEY WERE MARRIED.
BOUND CO-OWNERSHIP EXISTS WHERE THERE IS AN UNDERLYING LEGAL RELATIONSHIP
BETWEEN CO-OWNERS WHICH DETERMINES THE BASIS OF THEIR CO-OWNERSHIP, E.G. A
MARRIAGE IN COMMUNITY OF PROPERTY.
5. Distinguish between original & derivative methods of acquisition of ownership. (4)
ORIGINAL METHODS ARE USED WHEN THERE IS NO CO-OPERATION FROM A PREDECESSOR
IN TITLE; IN OTHER WORDS THERE IS NO TRANSFER OF OWNERSHIP. THIS FORM OF
ACQUISITION IS NOT LIMITED TO THINGS BELONGING TO NO-ONE. E.G. APPROPRIATION.
DERIVATIVE METHODS OCCUR WITH THE CO-OPERATION OF A PREDECESSOR IN TITLE. THE
PREDECESSOR IN TITLE SHOULD HAVE BEEN THE OWNED AND ENTITLED TO TRANSFER
OWNERSHIP (NO-ONE CAN TRANSFER MORE RIGHTS TO ANOTHER THAN HE HAS HIMSELF).
THE RIGHT IS TRANSFERRED TO THE NEW OWNER WITH THE ADVANTAGES AND
DISADVANTAGES ATTACHED TO THAT RIGHT. E.G. BUYING SOMEONE’S CAR.
6. Distinguish between possession and holdership/with specific reference to the mental
element (animus). (4)
POSSESSION IS THE PHYSICAL CONTROL OF A THING WITH THE INTENTION OF THE OWNER.
IT IS ALWAYS UNLAWFUL AND THEREFORE ONLY A REAL RELATIONSHIP, NOT A REAL RIGHT.
HOLDERSHIP IS THE PHYSICAL CONTROL OF A THING WITH THE INTENTION TO DERIVE A
BENEFIT. IT COULD BE LAWFUL OR UNLAWFUL. A LAWFUL HOLDER HAS A REAL RIGHT. AN
UNLAWFUL HOLDER HAS A REAL RELATIONSHIP.
7. Name the requirements for successful reliance on the condictio furtiva. (5)
I) OWNERSHIP OR RETENTION OF A LAWFUL INTEREST FROM THE DATE OF THE THEFT TO
THE DATE OF THE INSTITUTION OF THE ACTION.
II) THEFT OR REMOVAL OF THE THING WITH DECEITFUL INTENT.
III) IF THE ACTION IS NOT INSTITUTED AGAINST THE THIEF OR DECEITFUL REMOVER, THAT
THE DEFENDANT IS THE HEIR OF THE FORMER.
8.1 Name the requirements for a successful reliance on the rei vindicatio. (3)
PLAINTIFF MUST PROVE:
