Property Term 4 Notes
Two modes of acquiring ownership: Original: Takes effect by operation of law. A unilateral act where one
person assumes control. Derivative: Ownership is derived from someone else. A bilateral transaction
between two people – a previous owner who transfers ownership to a new owner.
Whether one has acquired ownership originally or derivatively is determined by considering four factors:
- The nature of the acquired thing (object of ownership) determines the rules that govern the
acquisition of ownership. Is it movable or immovable?
- Is ownership being transferred from one person to another? Yes = derivative, no = original.
- Nemo plus iuris rule = for derivative ownership, you cannot transfer more rights than you have.
Cannot transfer ownership if you are not owner for example.
- Principle of publicity = it must be publicly known who owns what. This is done by registering
ownership in the deed’s registry or through contracts. It is to protect bona fide third parties.
Original Acquisition of Ownership
Original acquisition is guided by two elements:
The corpus (physical element) and animus (mental element). Whether someone has acquired ownership
originally is determined through an objective test, as ownership is acquired through the operation of law.
[Rei vindication – owners remedy!]
1. Accession (accessio)
o Occurs when two things belonging to two different people become integrated into one composite
thing. This can occur naturally or artificially. Can occur through contract or an owner is unaware.
o One of the two things must be the principal thing and the other an accessory thing. The end product
is a composite thing, where the accessory thing loses its’ legal identity once joined to the principal
and the owner of the principal is owner of the composite in full including the accessories.
o Accession can occur between movables to movables, movables to immovables, and immovables to
immovables. There are different rules for each scenario.
o When considering movables to immovables, the rule is that the immovable is always the principal
thing and the movable will accede.
Requirements for Accession
o Nature and form of joined things (im/movable) – have set rules
o A composite thing must form, and the attachment be permanent (must be a clear indication that
it is intended to be a permanent new composite thing). Objective, factual test where court
considers how easy it would be to take it apart! (Difficulty to remove/detach indicates
‘permanency’ – easy and quick to remove less likely to be a permanent attachment).
o A principal and an accessory thing must be identifiable after accession (If not identifiable, it is
no longer considered accession) [land = always the principal thing]. To be identifiable means
you could hypothetically take it apart or identify how it could be separated.
o Additional requirements for three forms of accession (movable to movable; movable to
immovable; immovable to immovable)
,Movables to movables
o Attachment of two things through human intervention (Owner of principal becomes owner of
composite – owner of accessory loses but can claim the value through unjustified enrichment)
o Principal and accessory must still be identifiable or recognisable at accession (so that you can
determine which in principal vs accessory and thus who is owner of composite)
o Permanence – two components of the composite must be inseparable
o The attachment should not amount to manufacture (specification)
Which component of the composite thing is the principal and which is the accessory thing?
There is no single judicially approved test – different approaches.
Khan v Minister of Law and Order (Gives the composite its character, form and function?)
Highest value?
Bulk of the composite thing?
Critical for the composite thing’s existence?
Mere decoration?
Movables to Immovables
General rule: Whatever attaches to the land becomes an accessory thing
- Planting and sowing: Owner of the land is automatically owner of the plants (bona fide seed owner
– unjustified enrichment). Accession occurs when the plant has struck root and drawn nourishment
from the soil. Nature and purpose of the movable is important (Plants intended to be removed do not
accede to land – exception is therefore: Nursery plant business).
- Building (Inaedificatio): MacDonald 3-factor test = Attachment must be permanent (1. nature and
purpose of attached movable is important; 2. manner and degree of attachment; 3. Subjective
intention of the annexor). The last factor (subjective intent) is criticised – it is contrary to the
publicity notion critical in property law.
Immovable to Immovables
This type of attachment only occurs naturally (often by action of water)
- Alluvion (become owner organically through the gradual deposit of soil by a river/ocean)
- Avulsion (Sudden deposit of soil by force to due a natural disaster such as a flood)
- Both alluvion and avulsion refer to immovables which have no fixed boundaries, refer to a public
and non-navigable river and occurs through a natural act.
- Islands arising in a river or a river changing its course.
2. Appropriation (Occupatio)
A person acquires ownership unilaterally over something that is capable of being privately owned. The thing
that is acquired by appropriation must be res nullius (never been owned) or res derelictae (property
previously owned and then abandoned – not lost property. To determine abandonment there must be
considerable time between lack of contact with the owner and thing and there must be clear intention of an
owner to abandon – animus domini). Intention of an owner is the principal thing used to distinguish between
an abandoned thing and a thing that has been lost with no intention of giving up ownership. Cannot become
owner of something lost as there is no intention to transfer ownership.
, Two requirements:
1. Person appropriating must have sufficient and effective physical control
2. Must have the animus domini – must exercise control with the requisite intention of an owner.
Requirements for appropriation:
o Unowned corporeal property
o Capable of being privately owned
o Unilateral assumption of possession (corpus element)
o Sufficient and effective control – case-by-case basis. Having keys to access your property is
sufficient control for things that cannot be constantly in your possession. – Reck and Methenjwa
(wild animal).
o Intention of being the owner (animus element)
o Other requirements set by statutes (Game Theft Act – an exception to the general rule of res nullius is
provided for. If an animal escapes a game reserve and you capture it, you cannot appropriate it.)
3. Acquisition of Fruits
Takes place when a new thing is formed following separation of an accessory/fruit and principal thing.
Principal thing undergoes separation from an accessory thing (the fruit). The fruit flows from the principal
thing. The fruit obtains a legal identity immediately as the fruit of the principal thing as a separate and
unique object with its own separate legal identity. The fruit can be acquired by the owner of the principal
thing. However, through usufruct a non-owner can also collect and gather the fruits.
General Rule: Owner of the principal thing is automatically owner of the fruits.
Ownership of fruits may be varied – an exception is the provision of a usufruct for a non-owner to benefit.
The person only becomes owner of the fruits once they have been gathered and collected (not remain on
principal thing).
Fruits can be
- Natural
- Civil (rent or interest on investments)
4. Manufacture (Specificatio)
When a manufacturer combines two things, one owned personally and another owned by another, in order to
produce a completely new and different thing.
A manufacturer obtains material (wholly or partly) belonging to another person and creates a new thing. An
important factor is the principal of non-reducibility of the new item (wine from grapes for example). This
means that the ingredients cannot be reduced to their original form.
The subjective mindset of the manufacturer is important.
If the material is owned by the manufacturer, they are automatically the owner.
Owner of the material is owner of the new thing. When there has been permission of an additional owner to
contribute material, there can be agreement (contract) on proportion of ownership. When there was no
permission of the owner, the rules of specificatio determine ownership!
Two modes of acquiring ownership: Original: Takes effect by operation of law. A unilateral act where one
person assumes control. Derivative: Ownership is derived from someone else. A bilateral transaction
between two people – a previous owner who transfers ownership to a new owner.
Whether one has acquired ownership originally or derivatively is determined by considering four factors:
- The nature of the acquired thing (object of ownership) determines the rules that govern the
acquisition of ownership. Is it movable or immovable?
- Is ownership being transferred from one person to another? Yes = derivative, no = original.
- Nemo plus iuris rule = for derivative ownership, you cannot transfer more rights than you have.
Cannot transfer ownership if you are not owner for example.
- Principle of publicity = it must be publicly known who owns what. This is done by registering
ownership in the deed’s registry or through contracts. It is to protect bona fide third parties.
Original Acquisition of Ownership
Original acquisition is guided by two elements:
The corpus (physical element) and animus (mental element). Whether someone has acquired ownership
originally is determined through an objective test, as ownership is acquired through the operation of law.
[Rei vindication – owners remedy!]
1. Accession (accessio)
o Occurs when two things belonging to two different people become integrated into one composite
thing. This can occur naturally or artificially. Can occur through contract or an owner is unaware.
o One of the two things must be the principal thing and the other an accessory thing. The end product
is a composite thing, where the accessory thing loses its’ legal identity once joined to the principal
and the owner of the principal is owner of the composite in full including the accessories.
o Accession can occur between movables to movables, movables to immovables, and immovables to
immovables. There are different rules for each scenario.
o When considering movables to immovables, the rule is that the immovable is always the principal
thing and the movable will accede.
Requirements for Accession
o Nature and form of joined things (im/movable) – have set rules
o A composite thing must form, and the attachment be permanent (must be a clear indication that
it is intended to be a permanent new composite thing). Objective, factual test where court
considers how easy it would be to take it apart! (Difficulty to remove/detach indicates
‘permanency’ – easy and quick to remove less likely to be a permanent attachment).
o A principal and an accessory thing must be identifiable after accession (If not identifiable, it is
no longer considered accession) [land = always the principal thing]. To be identifiable means
you could hypothetically take it apart or identify how it could be separated.
o Additional requirements for three forms of accession (movable to movable; movable to
immovable; immovable to immovable)
,Movables to movables
o Attachment of two things through human intervention (Owner of principal becomes owner of
composite – owner of accessory loses but can claim the value through unjustified enrichment)
o Principal and accessory must still be identifiable or recognisable at accession (so that you can
determine which in principal vs accessory and thus who is owner of composite)
o Permanence – two components of the composite must be inseparable
o The attachment should not amount to manufacture (specification)
Which component of the composite thing is the principal and which is the accessory thing?
There is no single judicially approved test – different approaches.
Khan v Minister of Law and Order (Gives the composite its character, form and function?)
Highest value?
Bulk of the composite thing?
Critical for the composite thing’s existence?
Mere decoration?
Movables to Immovables
General rule: Whatever attaches to the land becomes an accessory thing
- Planting and sowing: Owner of the land is automatically owner of the plants (bona fide seed owner
– unjustified enrichment). Accession occurs when the plant has struck root and drawn nourishment
from the soil. Nature and purpose of the movable is important (Plants intended to be removed do not
accede to land – exception is therefore: Nursery plant business).
- Building (Inaedificatio): MacDonald 3-factor test = Attachment must be permanent (1. nature and
purpose of attached movable is important; 2. manner and degree of attachment; 3. Subjective
intention of the annexor). The last factor (subjective intent) is criticised – it is contrary to the
publicity notion critical in property law.
Immovable to Immovables
This type of attachment only occurs naturally (often by action of water)
- Alluvion (become owner organically through the gradual deposit of soil by a river/ocean)
- Avulsion (Sudden deposit of soil by force to due a natural disaster such as a flood)
- Both alluvion and avulsion refer to immovables which have no fixed boundaries, refer to a public
and non-navigable river and occurs through a natural act.
- Islands arising in a river or a river changing its course.
2. Appropriation (Occupatio)
A person acquires ownership unilaterally over something that is capable of being privately owned. The thing
that is acquired by appropriation must be res nullius (never been owned) or res derelictae (property
previously owned and then abandoned – not lost property. To determine abandonment there must be
considerable time between lack of contact with the owner and thing and there must be clear intention of an
owner to abandon – animus domini). Intention of an owner is the principal thing used to distinguish between
an abandoned thing and a thing that has been lost with no intention of giving up ownership. Cannot become
owner of something lost as there is no intention to transfer ownership.
, Two requirements:
1. Person appropriating must have sufficient and effective physical control
2. Must have the animus domini – must exercise control with the requisite intention of an owner.
Requirements for appropriation:
o Unowned corporeal property
o Capable of being privately owned
o Unilateral assumption of possession (corpus element)
o Sufficient and effective control – case-by-case basis. Having keys to access your property is
sufficient control for things that cannot be constantly in your possession. – Reck and Methenjwa
(wild animal).
o Intention of being the owner (animus element)
o Other requirements set by statutes (Game Theft Act – an exception to the general rule of res nullius is
provided for. If an animal escapes a game reserve and you capture it, you cannot appropriate it.)
3. Acquisition of Fruits
Takes place when a new thing is formed following separation of an accessory/fruit and principal thing.
Principal thing undergoes separation from an accessory thing (the fruit). The fruit flows from the principal
thing. The fruit obtains a legal identity immediately as the fruit of the principal thing as a separate and
unique object with its own separate legal identity. The fruit can be acquired by the owner of the principal
thing. However, through usufruct a non-owner can also collect and gather the fruits.
General Rule: Owner of the principal thing is automatically owner of the fruits.
Ownership of fruits may be varied – an exception is the provision of a usufruct for a non-owner to benefit.
The person only becomes owner of the fruits once they have been gathered and collected (not remain on
principal thing).
Fruits can be
- Natural
- Civil (rent or interest on investments)
4. Manufacture (Specificatio)
When a manufacturer combines two things, one owned personally and another owned by another, in order to
produce a completely new and different thing.
A manufacturer obtains material (wholly or partly) belonging to another person and creates a new thing. An
important factor is the principal of non-reducibility of the new item (wine from grapes for example). This
means that the ingredients cannot be reduced to their original form.
The subjective mindset of the manufacturer is important.
If the material is owned by the manufacturer, they are automatically the owner.
Owner of the material is owner of the new thing. When there has been permission of an additional owner to
contribute material, there can be agreement (contract) on proportion of ownership. When there was no
permission of the owner, the rules of specificatio determine ownership!
