in general o Or actions - owner or occupier - cause damage o Claim Compensation o Prohibited by interdict o Damage – actio legis aquillae Q - Whether owner causing nuisance is abusing rights (entitlements)? Unlawful Abuse of Rights: 1. Exclusive purpose to harm 2. Animo vicino nocendi 3. results real damage or prejudice 4. Not exercise of entitlement
6 – ORIGINAL ACQUISITION – OWNERSHIP Original Acquisition: 1. Ownership not depend on lawful ownership of legal predecessor 2. Benefits & obligation not passed to new owner 3. Eg. Appropriation of res nullius or res derelict 4. Co-operation of previous owner not required 5. Ownership pass without legal predecessor’s co -operation 6. Eg. Accession, prescription and expropriation 7. Ownership takes place by operation of law 8. Not transferred Derivative Acquisition: 1. Ownership dependent on lawful ownership of predecessor 2. Benefits and obligations of previous owner pass to new owner 3. Co-operation of previous owner required ORIGINAL ACQUISITION 1. APPROPRIATION – OCCUPATIO 2. ACCESSION – ACCESSIO 3. PRESCRIPTION DEFINITION: 1. Unilateral exercising 2. Physical control 3. Over corporeal thing 4. That can be owned – res in commercio 5. But is not owned by anyone 6. Res nuulius or res derelict 7. With intention to become owner REQUIREMENTS: 1. Physical control – corpus 2. Intention of owner – animus domini 3. Corporeal thing not belonging to anyone Physical Control : 1. Depend on circs of case and nature of object 2. Determined objectively 3. Need not be lawful *Reck v Mills: − Common law ownership terminated by abandonment – owner abandons prop with intention of no longer being owner − Spoliation remedy mandament van spolie based on principle that person who was DEFINITION: 1. When 2 corporeal things or parts of things 2. (principal and accessory thing) 3. Are combined through human activity or natural process 4. That one thing or part thereof 5. Loses physical and economical independence 6. Becomes part of another thing 7. Thing retaining independence = principal 8. Thing losing independence = accessory 9. Owner of principal thing = new owner by operation of law 10. Regardless if aware of accession Passing of ownership through accession only if: 1. Composite thing not easily divisible 2. Principal & accessory thing distinguished 3. Accession not amount to manufacture (specification) TEST: 1. Accessory thing must lose independence 2. Accessory thing form part of principal thing 3. Principal thing has greater mass or value 4. Accessory thing serves merely as decoration IMMOVABLES TO IMMOVABLES: 1. Takes place naturally DEFINITION: 1. Real right (ownership or limited real right) 2. Acquired iro movable or immovable 3. By means of open and undisturbed possession thereof (ownership) 4. Or exercise of rights in respect thereof for uninterrupted period of 30 days (limited real right) S 2(1) PRESCRIPTION ACT 1943- REQUIREMENTS FOR ACQUISITIVE PRESCRIPTION: 1. Possession of another’s movable or immovable things 2. Exercise of servitude iro immovable things 3. Continuously for 30 yrs 4. Without force – nec vi 5. Openly – nec clam
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- Fall '17
- Possession, physical control