Law of Property Assignemt

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SMITH & CO

ATTORNEYS REF: LOP/8/10/12LO2 8 OCTOBER 2012

FARM A

P O BOX 552

OMITARA

NAMIBIA

ATT: CO-OWNERS OF FARM A

RE: LEGAL OPINION REGARDING SELLING OF LAND BY CO-OWNERS, AND

THE ENFORCEMENT AND VALIDITY OF THE EXISTING SERVITUDES IN PLACE

FOR FARM A

We refer to the above mentioned matter and your formal request for a legal opinion regarding the matter.

We are pleased to inform you that we have accepted the mandate for the above mentioned matter.

The technical matters referred to above is defined in Namibia by The Namibian Constitution, the

Deeds Registry Act 47 of 1937 made applicable in Namibia on 1 June 1972, as well as various

case law.

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In order to understand and explain the dilemma above it should be clarified what the terms is that

define the law of property.

DEFINING OWNERSHIP OF A PROPERTY IN TERMS OF LAW OF PROPERTY

Property is no more than a convenient expression to denote the existence of some types of legal

relationships between specific persons and legal objects, which in many instances could be

classified as things. Land rights in modern societies are recognised by and defined in law.

The land title is the legal document that serves as a representation of land for all legal purposes:

it can be sold, mortgaged, pass by inheritance or given away.1

Property in the sense of ‘rights’ is traditionally seen as either ownership or real rights, but may

also be perceived in a wider sense, so as to include patrimonial rights e.g. personal rights and

immaterial property rights.

Patrimonial rights are those having patrimonial value and are rights to patrimonial objects

(which have economical or material value). Things, immaterial property and performances can

be patrimonial objects and rights to these are respectively called real rights, personal rights and

immaterial property rights.

Under the property clause contained in Bill of Rights in the Constitution2, property in the sense

of rights may include patrimonial rights such as real rights, personal rights, and immaterial

property rights, but also statutory claims (not based on contract) against the state to certain

resources or performances such as state pensions, medical aid schemes, subsidies, state jobs and

state contracts. These rights are frequently referred to as new property.

1SK Amoo ‘Towards Comprehensive Land Tenure Systems and Land Reform in Namibia” (2000) 17 South African Journal on Human Rights 872 Contitution of Namibia Article 16 (1) (2)

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For a right to be protected as property under the Constitution, it generally must bear patrimonial

value and it must be vested and not merely contingent upon a future happening.

A vested right, means that the right has accrued to the holder according to the relevant

principles of the common law or a stature.3 Constitutional protection of property is generally

dependent on a balancing of competing interests of individuals and the public at large, but also of

individuals mutually. This might mean that under particular circumstances protection of a right

generally acknowledged as property could succumb to protection of another constantly protected

interest, or even another type of property right. The Constitution, therefore, doesn’t protect

property in the sense of guaranteeing all existing property interests absolutely against any

interference or invasion not authorized or consented to by the owner.

In Namibia the land rights are recognized by the Constitution under Article 164 guaranteeing the

right to all to acquire own and dispose of property alone or in association with others and to

equate such property.5 This right to own property is also recognized under international law as

stipulated in the Universal Declaration of the Rights and Duties of Man 1948 that everyone has

the right to own property alone as well as in association with others and that no-one may be

abitriatily deprived of property. Because the right to own property is recognized by law and as

seen as fundamental right, the right to deprive an individual of his property can only be granted

by law and only on justifiable grounds.6

Thus it is illustrated by Roman Dutch law that ‘dominium’, which expresses more vividly that

the essence of ownership is the legal ability to control the use of a thing and that owners’

3 Consolidated Property of Law Notes p 174 The Namibian Constitution Article 165 C Treeger , “Legal analysis of farmland expropriation in Namibia” Konrad Adenhauer Stiftung , 1994 6 Ibid

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entitlements to determine the use to which their things may be put will almost invariably affect

the satisfaction of the needs and wants of others. E.g. owners may use things for the satisfaction

of their own and their family’s immediate wants and needs, they may use things for their own

benefit but use them as a means of production, they may make things they own temporarily

available to others, they can alienate their things, diminish their dominium and renounce some of

entitlements in favour of others and hoard their things and decline to make them available for

others. This is evident that the owner of a property has many rights to the property that he/she

may exercise as they deem fit. However the social function precipitates that the acquisition and

enjoyment of wealth occurs not in isolation, but in a context in which a plurality of people with

competing interests have to live in physical proximity. Therefore, a multitude of restrictions on

the freedom of property is acknowledged by law7, e.g. an owner’s ability to erect buildings on

his/her land is regulated by building regulations, the ability to alienate or acquire property may

be limited by legislative anti-pollution or nature, conservation mechanisms, factory regulations

and limitations imposed by private law in the interests of neighbors etc. Thus ownership is

described as the most complete right a legal subject can have in relation to an object.8

The right to ownership is generally explained by two distinct theories, ownership may be

described as a bundle of rights which has the right to dispose of property (ius disponendi) and the

right to use the property (ius utendi) and the right to draw fruits (ius fruendi) and right to neglect

property (ius abutendi). The freedom of use is subject to the rights of others and, as such, uis

disponendi is, to a certain degree, limited. This was clearly discussed in the Gien v Gien9 Case by

Speolstra J to consul that;

7 Moster et al , “The Principles of the Law of Property in South Africa” 908 Moster et al , “The Principles of the Law of Property in South Africa” 919 Gien v Gien 1979 (2) SA

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“Where the unlimited right of one owner to use property conflicts with the right of

another owner to the free enjoyment of his property, the rights are limited by the

imposition of mutual obligations. An owner's rights of ownership then extend only so far

as there rests an obligation on his neighbour to endure the exercise of that right. That

involves an obligation on the one owner so to exercise his right that he does not exceed

that limit. If it is exceeded, he no longer acts according to the right which his right of

ownership accords to him and he infringes the right of his neighbour. That is unlawful

conduct which the law does not tolerate and which can form the basis of an interdict.”

Thus it should be seen that no legal person has obsolete right although they have a real right and

that right can be limited under certain circumstance such as co-ownership, praedial servitude and

personal servitude.

CO-OWNERSHIP

Co-ownership or also referred to as joint tile or ownership in common entails ownership in the

same property by more than one person or entity simultaneously.10 Co-ownership is further

categorized into co-ownership derived from common law and statutory co-ownership. Common

law co-ownership is divided into free and bound co-ownership to movable and immovable

property. Statutory co-ownership relates mainly to immovable property.11

In common law co-ownership each owner acquires an undivided co-ownership share in the

property such as the four brothers of Farm A. Thus the undivided share in the property reflects

each co-owners interest which may be equal or not, in the property which is immovable in this

case. Thus one co-owner cannot burden or alienate the property without the consent of the other

10 Moster et al , “The Principles of the Law of Property in South Africa” 9611 Ibid 97

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co-owners. 12 As the brothers are free co-ownership, as no other legal relationship bounds them

such as marriage or partnership a free co-owner can alienate or burden his undivided co-

ownership share in the property independently13 furthermore and the content of the co-ownership

as well as how it may be exercised is not dependent on an underlying relationships. Thus if no

other agreement is in place to mitigate the trust or the farm then the brothers that wants to sell

their shares may sell it to any person that offers to buy it. Leaving it open for any person to buy

into the farm, permitting they do not contravene any prior agreement regarding this matter. Co-

ownership must be terminated by agreement or a court may be approached to evaluate the

reasonable of co-owners conduct and the feasibility of continued co-ownership. Unreasonable

conduct by any co-owner may lead to claim of damages by grieved parties.14 So inevitably it is in

everyone’s best interest to reach an agreement to the sale of the property as all advantages as

well as disadvantages to ownership is co-shared by all co-owners.15 If agreement can be reached

the land can either be divided among equal shares and the remaining brother that does not want

to sell his land can have the option to buy out the shares of the brothers based on some sort of

arrangement, or the other co-owners can sell their shares to another person or people. Either way

the co-owners will have to agree on the terms and if no agreement can be obtained the matter can

be taken to court where damages based on loss of income due to postponement of the sale or any

maintenance that has to be done in the time the sale was adjourned can be claimed against the

brother not wanting to sell.

SERVITUDES

12 Ibid 9713 Ibid 9714 Ibid9915 Ibid 100

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It should be noted that there are various forms of real right, where real rights are defined as the

exhibiting of power over immovable or movable property based on the ius as mentioned above.

It suffices to say that of all real rights the right of ownership in its unrestricted form confers the

most comprehensive control over a thing. A right with regard to a thing which belongs to another

person is a limited real right in the sense that it is a real right less than ownership in a thing

owned by a person other than the holder of such a right. Thus the right of way that was

established on Farm B and the access through Farm C to the railway line as well as drawing

water from the dam on Farm D, serves as a limited real right vis a vis servitude. Servitude refers

to the real rights that are carved out of the full dominium of the owner.16 Thus servitude is a ius

in re aliena.17

It might be expected that whether a right is movable or immovable would depend upon the

nature of the object to which it pertains. Thus a distinction should in the first instance be made

between real and personal rights, all personal rights being movable (even if performance

concerned consists e.g. of transfer of immovable property). As regarding real rights, a further

distinction should be made between real rights having immovable and movable things as object

respectively, the former being immovable and the latter being movable. Thus mineral rights and

praedial servitudes should be classified as immovable while personal servitudes are movable or

immovable depending on the nature of their objects.

The definition of servitude would be a limited real right to another person’s thing. It confers

specific entitlements of use and enjoyment on the holder who enjoys these entitlements as owner

16 Moster et al , “The Principles of the Law of Property in South Africa” 9617 Ibid

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of a particular piece of land (land (praedial) / real servitudes) or in his personal capacity

(personal servitude).18

A servitude subtracts from the owner’s dominium and because there is a rebuttable presumption

that ownership should be encumbered and free from servitudes, servitudes are construed in a way

so as to give the lease onerous (having disadvantageous obligations) to them. If there is doubt

whether a servitude is a land or a personal servitude – it will be construed as a personal

servitude, since they have a limited duration and are therefore less onerous. Thus it should first

be established what type of servitude was established between Farm A, B, C and D regarding the

use of their land.

A personal servitude benefits someone in his personal capacity or is granted only for a specific

period or for the holders lifetime, or, if not granted for a specific period, in the case of legal

persons for 100 years. It can be established over movables (e.g. money / sheep / cattle) and

immovable (e.g. land) it is however inseparably attached to the holder’s person and are in no way

transferable.19

Servitude for land though can be created in favour of a piece of land and last indefinitely. It can

be established over immovable things only and it can be alienated together with the land.20

Similarities of land and personal servitudes are that both are limited real rights, the maxim that

no one can establish servitude over his own thing applies to both and the maxim that an servitude

cannot be established over another servitude applies to both.21

18 “Property Notes and Cases” 2011, UNISA19 Ibid 20 Moster et al , “The Principles of the Law of Property in South Africa” 236

21 Ibid 236

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The servitude established in this case is a land or praedial servitude. This servitude can be

defined as a limited real right to the land of another (servient tenement) which confers on the

owner of the dominant tenement (tenement in favour of which the servitude is established), in

principle, permanent, defined entitlements of use and enjoyment re the servient tenement.22

It was there for established that a praedial servitude should comply with various

requirements before it will be recognised as a land servitude, because if land could easily be

burdened by all kinds of servitudes such as commercial traffic in land would be affected

detrimentally.

Firstly there must be at least two properties or pieces of land, dominant and a servient

tenement, belonging to different owners. This also corresponds to the nemini res sua servit rule23

and consequently there cannot be a servitude imposed upon servitude. Furthermore the servitude

must enhance the use and enjoyment of the dominant tenement and not serve merely to

satisfy the owner’s whims and fancies. This advantage conferred need to be economic , but may

also be aesthetic (arts / pleasing in appearance).

It should meet the requirements of utility.24 Thus the servitude should be in line with the rule of

vicinity and the tenements need not be adjacent. Secondly the tenements must be situated so that

the effective exercise of the servitude to the benefit of the dominant tenement is possible but –

they need not be adjacent. In De Kock v Hanel & Others25 it was stated that utility is required

only for the establishment of the praedial servitude and not for its continued existence. However

it cannot be established for a single (non-recurrent) exercise of the right and must be able to

22 Property Notes 2011, UNISA23 Moster et al , “The Principles of the Law of Property in South Africa” 24024 Ibid 24025 1999 (1) SA 994 C.

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satisfy the needs of the dominant tenement on a continual basis (servitutes perpetuas causas

habere debent).26

Thirdly a servitude should be passive in nature and cannot place a duty on the owner of the

servient tenement to perform a positive act. It can only require that that he endures a particular

activity or that he refrains from a particular act. Thus he cannot be obliged to do something for

the servitude. As in the case of Schwedhelm v Hauman27Thus the maxim principle of servitus in

faciendo consistere nequit applies.

Fourthly the servitude should be indivisibility.28 This relates to the entire dominant tenement

and burdens the servient tenement. Divisibility of servitude must be distinguished from the

physical subdivision of the land to which the servitude applies. The servitude remains vested in

each subdivision of the original dominant tenement in so far as the subdivision benefits thereby,

and provided that the burden on the servient tenement is not increased. Mere subdivision does

not entail a burdening of the servient tenement. A person relying on this must indicate why the

subdivision amounts to a burdening of his position of owner. The same applies to the

subdivision of the servient tenement, except where the servitude is demarcated and relates to a

particular portion of the tenement only, such as a right of way29. Those subdivisions which are

not crossed by the right of way (e.g. road) are exempted from the servitude in the case of

subdivision.

It is thus again evident that the servitude relating to the limitations upon the rights of the owners

of Farm B. C, and D are in line with the requirements that are set out above and thus can be held

26 Moster et al , “The Principles of the Law of Property in South Africa” 24127 1947 (1) SA 127 (E)28 Moster et al , “The Principles of the Law of Property in South Africa” 242

29 Ibid 242

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up as a real limited right for owners of Farm A. The Deeds Registry Act 6330, allows for

registration of the right or condition that impose a positive duty on the owner of a sevient

tenement if such right or condition is complementary to the registered condition or right

contained in the deed. It should however be noted that land servitudes are designed to survive

generations of owners of the land as this specific type of limited right is designed to serve the

land and not a person. As the servitudes with FARM B and C are flexible31 and the servitude

was not specifically defined as such, it should be registered to avoid future confusion and

disputes.

There are however different classification of land servitudes, rural (servitutes praediorum

rusticorum)32 and urban (servitutes praediorum urbanorum)33 that distinguishes the purpose for

which the land is designated. For the purpose of this case we will only focus on rural servitudes.

There are different types of rural servitudes and for the purpose of this case we will deal with,

right of way and right to water.

In Mostert et el (2011) the right of way is classified as Iter which is the way to walk or ride on

horseback on another’s land. Via,34 to use all forms of transport over servient tenement. The

servitutde however applicable to the Farm A is via necessitatis 35(way of necessity). This implies

that the owner of a piece of land which is without access to a public road or rail way ( as in this

case) can obtain a right of way over another’s land, ( over Farm B and C so as to gain such

access to the road and railway). This is however a permanent right of way and compensation is

paid to the owner of the servient tenement. This way of necessity is acquired by an agreement or

30 Deeds Registry Act 47 of 193731 Ibid 24432 UNISA 2011, “Law of Property” Pretoria, 2011, 298 33 Ibid34 Moster et al , “The Principles of the Law of Property in South Africa” 24535 Moster et al , “The Principles of the Law of Property in South Africa” 245

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a court order, in this case it was through an agreement between the owner of the Far, B and C

and the previous deceased owner of Farm A.

As the new owners of the Farm A does not intend to deviate from the previous routes on Farm B

and C and obey to the principles laid down in Van Rensburg v Coetzee36 that clearly states that

the underlying principle of a way of necessity is that it must follow the shortest route and cause

the owner of the servient tenement the least possible inconvenience, the owners of the Farm A is

not contravening any regulations or requirements regarding the servitude and may thus apply for

a permanent way of necessity as per the regulations set in Sanders N.O. and Another v Edwards

N.O. and Others.37 In this application the particulars of the claims must allege the particular

necessity in this case that the defendant’s land is situated behind the applicant’s land and the

nearest public road. The nature of the way of necessity must be stated. In that the farmer will be

able to exercise his farming activities reasonably. The nature of the terrain over which the way of

necessity will run must be determined and that the terrain is such to accommodate the way of

necessity. The particular route must be determined as being the most suitable and the width of

the road must be stated. A reasonable amount of compensation should be offered to the servient

tenement, taking into account factors such as the advantage gained by the applicant.

In regards to the way of right to water, the Aquaehaustus38 right is agreed upon which entitles

the owner of Farm A to draw water, including a right of access to the source. This specific

servitude is defined due to the agreement of the amount of water and unless otherwise agreed

upon or if the action of FARM A creates a negative burden on FARM D, should be adhered to.

36 1979 (4) SA 655 (A).37(A 36/2002) [2002] ZAWCHC 60; [2003] 1 All SA 108 (C) (7 November 2002 38 UNISA “Law of Porperty” Pretoria 2011 296

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Acquisition and conferment of servituted are done in either by agreement, legislation,court

order or prescription. Only an owner may grant a servitude over his property and if theirs is co-

ownership on the property all the co-owners must cooperate and where there is a bond on the

property the bondholder must consent.39 It should be noted that an agreement or a testamentary

bequest will not establish a servitude, but merely create a personal right to have the servitude

registered.

Servitude over immovable is established (vests) on registration of (i) reservation in a grant by

the State; (ii) reservation by a transfer in a deed of transfer; (iii) notarial deed.40

Registration of the servitude is endorsed against the title deeds of the dominant and servient

tenements. The registration is established by statute, prescription or a court order and serves

merely as a correction of the deeds registry records. It should however be noted that under the

doctrine of notice a servitude agreement creates a personal right to have the servitude

registered. The limited real right is created only on registration and the registration serves to

give notice to the world at large of the existence of the limited real right thus presenting all the

fact to someone who acquires ownership of the servient tenement, knowing that there is an

unregistered servitude agreement in respect of that land, is bound to respect the existence of the

servitude agreement. In terms of the doctrine of notice such new owner who has knowledge of

the servitude agreement may be bound to register the servitude. Someone who acquires land

without paying for it such as a gift or in terms of a will or at a judicial auction, is bound to

respect the servitude agreement even if that person does not know of the servitude agreement.

39 Ibid 29740 Moster et al , “The Principles of the Law of Property in South Africa” 251

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Seeing that ownership of the Farms B and D has not changed and per the regulations set out

above the new owners of the Farm C, the servitudes in place should be honoured and registered

as such.

The servitudes can only be terminated41 upon the expiry of the period it was established for or

the fulfilment of a resolute condition and, specifically in the case of a personal servitude, by

death of the holder or where the holder is a legal person, after 100 years if no time was fixed; by

agreement, by prescription, by expropriation, by renunciation (abandonment), by merger, by the

impossibility of exercising the right as a consequence of a permanent change in the condition of

the dominant or servient tenement such as a servitude to draw water where the well has

completely dried up.

As it can be noted none of these terms has occurred and for all purposes the servitudes in place

with Farm B, C and D are still in place and enforceable. It should be noted that the owner of the

servient tenement is entitled to exercise his rights as owner as long as these don’t conflict with

the servitude holder’s rights.42

Should the owners of Farm B, C and D not comply or adhere to the agreed servitudes and Farms

A should be deemed to not be able to exercising hits rights they may apply to the court for a

mandatory interdict to prohibit any further disturbance of his rights. The servitude holder can

also institute the Aquillian (delictual) action for the recovery of damages. If Farm A however

claims servitude rights disputed by the owner of Farm B, C and D they may apply to the court for

declaratory order together with a mandatory or prohibitory interdict.

CONCLUSION

41 Ibid 25342 Ibid 256

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If any one of the co-owners of FARM A should want to sell their shares, unless otherwise stated,

may sell his shares to any one of the other owners or the highest bidder. In order to sell the

property all co-owners should agree to dissolve the co-ownership of the property.

It can thus be summarized that all servitudes agreed on prior to the new owners of the Farm A

has to be honoured and kept in place. Thus FARM B cannot withdraw from the agreements made

prior. If he wished to continue to withdraw FARM A owners may claim damages in a court from

him.

FARM C new owners should as per previous agreement be aware of the servitudes for right of

way for FARM C and should register it as such with Registry Deeds office. They should also

take this into consideration when building on the property if no new agreement can be

established with the FARM A for a new path should their building plans obstruct the path used

by FARM A.

Regarding the withdrawal of water, if the servitude should be amended, because this servitude

was specifically agreed upon, then all co-owners of FARM A as well as the owner of FARM C

should be ad idem with the new conditions and terms of the servitude. Should they not be able to

agree, a court should be approached with this matter. Should FARM A owners not agree to the

new 15 000 gallons of water to be extracted and FARM D can provide that it would be

detrimental to his own property if more water is extracted, the court could hold that the servitude

is a negative burden on the property and thus could be altered to change the amount of water or if

the owner of FARM D so wishes to cancel the servitude.

If you should have any other enquiries, please feel free to contact me at any time.

Kind Regards,

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Jaime SmithREFERENCE

ARTICLES____________________________________________________________________

C Treeger , “Legal analysis of farmland expropriation in Namibia” Konrad Adenhauer Stiftung , 1994

CASES_______________________________________________________________________

De Kock v Hanel & Others 1999 (1) SA 994 C.

Gien v Gien 1979 (2) SA

Sanders N.O. and Another v Edwards N.O. and Other (A 36/2002) [2002] ZAWCHC 60; [2003] 1 All SA 108 (C) (7 November 2002 s

Schwedhelm v Hauman 1947 (1) SA 127 (E)

Van Rensburg v Coetzee 1979 (4) SA 655 (A).

BOOKS_______________________________________________________________________

Phamodi “Consolidated Property of Law Notes” South Africa, 2008

H Moster, P Badenhorst, J Pienaar, A Pope, W Freedman, J Van Wyk, “The Principles of the Law of Property in South Africa” Cape Town, 2010

UNISA “ Law of Property Notes” Pretoria, 2011

LEGISLATION AND DECLARATIONS__________________________________________

Deeds Registry Act 47 of 1937

The Constitution of The Republic of Namibia

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Universal Declaration of the Rights and Duties of Man 1948

Law of Property Assignemt

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