Property Ownership Transfer and the Abstract Theory
South African courts have adopted the abstract theory, which means that the validity of transferring ownership is not affected by whether the original transaction is valid. In the case of Legator McKenna Inc. v Shea [2009] 2 All SA 45 (SCA), McKenna, an attorney, was appointed as the curator of Mrs Shea’s estate because she […]
Understanding Tenant Rights to Property Possession
It often happens that a tenant, for whatever reason, refuses, neglects or is unable to pay rent and falls into arrears. A landlord, frustrated with the tenant and the legal eviction process, may be tempted to find ways to get rid of the tenant. Cutting off water and electricity, changing locks, and using intimidation tactics […]
How a Latin Phrase Affected a Recent Property Dispute Case
In essence, the Latin phrase nec vi, nec clam, nec precario translates to “without force, without secrecy, and without permission”. According to the Prescription Act, a person can become the owner of property through prescription if they have possessed it openly as the owner for an uninterrupted period of 30 years, or for a period […]
What Role Do Homeowners’ Associations Play in Shared Developments?
Homeowners’ Associations (HOAs) are a critical component of shared developments in South Africa, managing everything from noise levels to pet policies. While they offer many benefits, the legal framework surrounding HOAs can be complex, involving legislation such as the Sectional Titles Schemes Management Act of 2011. In addition to managing disputes and enforcing rules, HOAs […]
All Our Trustees Have Resigned. What Now?
What happens if all the trustees of a sectional title scheme resign? Who is then in control of the management, and who is entitled to continue exercising the function and powers of the body corporate, which is entrusted to the trustees by virtue of the Sectional Title Schemes Management Act 8 of 2011 (STSMA)? The […]
Claiming Ownership Through Acquisitive Prescription
One way to acquire property in South Africa is through acquisitive prescription. This method does not rely on the transfer of rights from a predecessor in title; instead, it acknowledges specific factual criteria that, when met, grant legal rights and title to ownership. This article will outline the requirements necessary for successfully claiming ownership through […]
Understanding Homeowners Associations (HOAs)
If you are considering buying a property in a housing development, it’s essential to understand what a Homeowners Association (HOA) is and how it operates. HOAs are legal entities responsible for managing and regulating housing development schemes. Although homeowners own their individual properties, the HOA maintains and oversees communal infrastructure, such as roads, security systems, […]
Tenant ‘Red Flags’ and How to Avoid Them
The wrong tenant can have a lasting negative effect. The residential property industry continues its upward trajectory, and investors are getting in on the action. However, with the rise of investors choosing to take advantage of low prices and invest in ‘buy-to-let’ properties comes an excess supply of rental properties in areas with high supply […]
Understanding your rights: Breach and penalty clauses in property agreements
When buying immovable property, the offer to purchase serves as an agreement between buyer and seller. Within this document, certain clauses demand meticulous attention from both parties. These clauses outline the rights, obligations, and procedures that govern the transaction. Understanding these key provisions is essential for ensuring that the interests of both the buyer and […]
Is there a need for Sectional Ownership?
Professor C.G. van der Merwe, the doyen of sectional titles in South Africa, sets out the reasons for introducing sectional ownership into a legal system. He states that these reasons or aims are similar worldwide and mean legislative recognition of the social, economic, and physiological needs of society. The need and demand for suitable residential […]