Law of Property

Andi Hoole                                                                                         Legal Theory 3

G14h0177                                                                                           Due Date: 18/03/2016

PROPERTY  LAW A: ASSIGNMENT

Property law is the field of law that regulates the rights that legal subjects have over legal objects. The Roman Law Division divided private law into three categories; the law relating to actions, the law relating to persons and the law relating to things (res). Mostert et al define a ‘thing’ in the legal sense as being “any independent object whether corporeal or incorporeal, which does not form part of a human being which may be controlled by humans, and is of use and value to them.”^[1] Inaedificatio, or ‘building’, refers to a movable thing becoming immovable through accession. This method of acquisition of ownership occurs when a thing permanently accedes to the land in question, which allows it to become the property of the owner of that land.^[2] This essay, with reference to the judgements of Mcdonald^[3], Standard-Vacuum Refining Co^[4] and Theatre Investments^[5], will outline the legal principles applicable to inaedification and critically discuss the South African courts’ approach to the divisibility of things for the purposes of determining ownership.

Characteristics of a thing

In order to discuss the divisibility of things for purposes of determining ownership one must first have a working definition of the term ‘thing’. Characteristics such as corporeality, an impersonal nature, appropriability, use and value and independence are used to define a thing as a legal concept.^[6] A thing is labelled corporeal if it is tangible. The second characteristic of things are that humans are not included under the scope as they function as legal subjects , not objects.^[7] Appropriability as a characteristic refers to the fact that a thing must have the possibility of being enforced, protected and controlled by humans. The fourth defining characteristic is that the thing must have use and value to a person.^[8] The final, and most important characteristic pertaining to the issue of divisibility of things for purposes of determining ownership is that a thing must have an independent legal existence. Physical independence is not required and conversely things that are physically dependent may be juridically independent. This characteristic comes into use when, for example, a party is faced with a fused object that requires division for purposes of determining ownership.

Classification of things

The classification of things is important because it determines which rules apply to acquisition, protection and enforcement of rights. The function of a thing determines classification. Things are classified according to the use of the thing in commerce (negotiability) or the nature of the thing. Things are classified into six categories according to their nature^[9], only three of which pertain to the divisibility of things for purposes of determining ownership. The first classification is that of single or composite things. Single things exist independently and have use and value.^[10] Composite things are different individual elements joined together to form a single entity. ^[11] The second classification is that of divisible and indivisible things. Mostert et al explain that a thing is divisible if “it can be separated into parts, each of which has the same nature and function as the whole before it was divided.”^[12] The importance of this classification arises in the termination of co-ownership of indivisible things.

Things may further be classified according to their nature as movable and immovable things. This classification is based on the question; can the thing be moved from one place to another without damaging it or loss of its identity? A thing retains its independence, unless it accedes or becomes an immovable.^[13] When movables are attached to immovable the movable becomes part of the immovable and one value is lost while the other is gained. Land and everything that permanently attaches to land is an example of immovable things.^[14] This distinction is crucial for accession which Knobel defines as “an original method of acquisition of ownership.”^[15] Original methods of ownership are used when there is no co-operation from the previous owner and therefore no transfer of ownership. For purposes of this essay accession refers to when movable things which are attached to land permanently become part of the land and therefore the property of the land owner.^[16] In South African law this method of acquisition of ownership is called inaedificatio. It is based on the common law principles superficies solo cedit and omne quod inaedificatur solo cedit which provide that “when a movable is attached to land, the movable (accessory thing) accedes to the land (always the principle thing), or becomes part of the land.”^[17] 

Criteria applied to determine whether permanent annexation has taken place or not

 Publicity and protection of ownership are the underlying principles of accession.^[18] The publicity principle entails an objective assessment of the land by an outsider who establishes whether the movable has acceded to the immovable.^[19] The South African courts have acknowledged that the protection of ownership principle as well as to determine whether a movable became part of the land through inaedificatio is difficult and depends on the circumstances of every case.^[20] In the Macdonald^[21] case the court apply three criteria to determine whether a movable thing has lost its independence and became part of the principal thing: the nature and the purpose of the attached thing, manner and degree of attachment and the intention of the person annexing it or the intention of the owner of the movable. The first two criteria are objective, as they can be established by merely observing the property while the third is subjective, as the intention of every owner is different.^[22]

...