Glossary of Property Law Terms

Introduction

This glossary provides definitions of key property law terms in South African law. The terminology reflects the Roman-Dutch origins of South African property law, with significant constitutional influence particularly through the property clause (section 25) and land reform legislation.

Key Terms

Ownership: The most comprehensive real right that a person can have over property. Ownership confers the right to use, enjoy, and dispose of property, subject to legal limitations. Section 25 of the Constitution protects property rights while providing for expropriation in the public interest.

Possession: Physical control over property accompanied by the intention to hold it for oneself. Possession is distinct from ownership; a person may possess property without owning it. The law protects possession through possessory remedies.

Servitude: A limited real right over another person’s property, entitling the holder to use the property in a specified manner (praedial servitude) or to require the owner to refrain from certain uses (personal servitude). Servitudes are registered against the title deed.

Real Right vs Personal Right: A real right (ius in re) is a right in a thing that is enforceable against the world, while a personal right (ius in personam) is a right against a specific person. The distinction determines whether a right is registrable against property.

Land Reform: The constitutional and legislative programme to address the historical dispossession of land. Section 25 of the Constitution provides for land reform through three pillars: land restitution (restoring land or providing compensation), land redistribution (making land available for equitable access), and land tenure reform (securing rights of occupiers).

Expropriation: The compulsory acquisition of property by the state in the public interest, subject to the payment of compensation. Section 25(2) provides that expropriation must be for a public purpose or in the public interest and must be accompanied by just and equitable compensation.

Estoppel by Representation: A doctrine preventing a person from denying a state of affairs that they have represented to be true, where another has relied on that representation. In property law, estoppel may prevent an owner from asserting their ownership against a person who has relied on the owner’s representation.

Tacit Hypothecation: A security right that arises by operation of law rather than by agreement. The most common example is the tacit hypothec of the landlord over the property of the tenant for unpaid rent.