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The Distinction between Real Rights and Personal Rights in the Deeds Registration System of South Africa – Part One: Statutory and Theoretical Distinction between Real Rights and Personal Rights

The Distinction between Real Rights and Personal Rights in the Deeds Registration System of South... Real rights in respect of land are registrable in the deeds registration system of South Africa, while personal rights may not be registered. The Deeds Registries Act 47 of 1937, which allows an open system of real rights, does not define real rights and personal rights properly, and does not draw a distinction between such rights. In this article in two parts the view is expressed that the nature of these rights is determined by distinguishing real rights from personal rights, especially in terms of the doctrine of subjective rights, and by distinguishing between ownership and limited real rights by application of the subtraction from the dominium test (as supplemented by the intention test). Both fundamental distinctions are founded in the South African common law and still form the basis for a modern theory of real rights. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png African Journal of International and Comparative Law Edinburgh University Press

The Distinction between Real Rights and Personal Rights in the Deeds Registration System of South Africa – Part One: Statutory and Theoretical Distinction between Real Rights and Personal Rights

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Publisher
Edinburgh University Press
Copyright
Copyright © Edinburgh University Press
ISSN
0954-8890
eISSN
1755-1609
DOI
10.3366/ajicl.2021.0376
Publisher site
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Abstract

Real rights in respect of land are registrable in the deeds registration system of South Africa, while personal rights may not be registered. The Deeds Registries Act 47 of 1937, which allows an open system of real rights, does not define real rights and personal rights properly, and does not draw a distinction between such rights. In this article in two parts the view is expressed that the nature of these rights is determined by distinguishing real rights from personal rights, especially in terms of the doctrine of subjective rights, and by distinguishing between ownership and limited real rights by application of the subtraction from the dominium test (as supplemented by the intention test). Both fundamental distinctions are founded in the South African common law and still form the basis for a modern theory of real rights.

Journal

African Journal of International and Comparative Law – Edinburgh University Press

Published: Aug 1, 2021

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