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Nature of co-ownership

5 July 2012

Ownership of land gives the right to possess, to use and enjoy, to alienate it, and to lay it to waste.  Real rights constitute either a deduction from, or a restriction on one or more of the above rights.  From a practical point of view no person has absolute ownership, for not only are his/her rights subject to those of the State but, generally speaking, all land is subject to registered real rights, especially servitudes and restrictive conditions which have their commencement in the original deed of transfer.

Ownership of a piece of land is not confined to one person, and from a registration point of view it is of interest to ascertain what rights a co-owner may grant over his/her share.  It would seem that except for a transfer of his/her share or a fraction thereof the right to grant mortgages, leases and servitudes is based more on practice than on authority.  In fact, from a practical point of view, it is clear that a co-owner cannot grant a right in his/her share which would infringe the rights of his/her co-owners (Sauerman and Another v Schultz 1950 (4) SA 455 (O) at p. 460).

It would seem, therefore, that he/she can –

  • transfer his/her share or a fraction thereof.
  • mortgage his/her share or a fraction thereof.
  • lease his/her share, but only where the rights of his co owners are not affected (cf. Botha v Kinnear, 1880 Kotze 215). Where a co-owner grants a lease of the whole property, even if it was not authorized by the remaining owners, the lease will not be binding on the co-owners although they received a portion of the rent (Milne N.O. v Abdoola, 1955 (2) S.A. 187 (D.) at p. 189).  A lease of an undivided share of property has little practical value to a lessee, unless he/she has rights in respect of the remaining shares.
  • grant a servitude of usufruct, usus or habitatio in respect of a share merely places the holder in the same position as a co-owner (see Oosthuizen v du Plessis, 5 S.C. 69; Sauerman and Another v Schultz, 1960 (4) SA 455 (O.).  There also seems no reason why one should not be capable of granting a servitude in keeping with the nature of the land.  For example, a grazing servitude over grazing land (cf. Botha v. Kinnear, 1880 Kotze 215).

Co-ownership has been distinguished from a partnership (Oblowitz v Oblowitz, 1953 (4) SA 426 (C)).  Under the common law a co-owner cannot grant a servitude such as a right of way or even restrictive conditions which usually must bind the land as a whole (see Oosthuysen v Muller, 1877 Buch. 129; In Pretorius v Nefdt and Glas, 1908 T.S. 859 the Court held that a co-owner of an undivided share of a farm was entitled to use a road over such property for transporting goods from another farm.  The court held in this regard as follows:

“A co-owner is entitled to reasonable use of the rights which he has in that property.  Reasonable, that is to say, in proportion to the share he possesses and in such a way that he does not infringe on the rights of the other co owners”

Allen West
Deeds Training
Pretoria

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