Category: ownership

Disclaimer notices

A4BDisclaimer notices offer protection for owners and employees concerning shopping centres, stadiums, parking lots and other public areas. For these notices to be effective, certain requirements have to be adhered to.

False reliance on these disclaimers can be a very expensive mistake. Find out whether your disclaimer notice will be sufficient to protect you and your employees.

Disclaimer notices are commonly seen in shopping centres, stadiums, parking lots and other public areas. These notices are generally aimed at protecting the owner or employees with regards to the area in question, by exempting him/her from legal liability when a member of public using the area suffers damage.

It is well established that disclaimer notices are enforceable when properly implemented. This is clear from the extract below:

Durban’s Water Wonderland (Pty) Ltd v Botha and Another (1999) 1 All SA 411 (A) at 115:

“If the language of a disclaimer or exemption clause is such that it exempts the proferens from liability in express and unambiguous terms effect must be given to that meaning. If there is ambiguity, the language must be construed against the proferens. (See Government of the Republic of South Africa v Fibre Spinners & Weavers (Pty) Ltd 1978 (2) SA 794 (A) at 804 C.)”

According to prevailing case law, when considering whether a disclaimer notice is effective, two factors have to be considered:

Firstly, from the Durban Water Wonderland case, it is evident that for the disclaimer’s content to be effective, the wording thereof must not be ambiguous. It is therefore required that the disclaimer must indicate in express terms what the person relying on the disclaimer is exempted from when someone reads the disclaimer. However, any alternative meaning of the disclaimer notice cannot be too widely interpreted. It is simply required that the meaning of the disclaimer is clear to anyone reading it. This test is implemented so that a vague statement cannot be regarded as sufficient to bind someone according to the legal principle of so called “quasi-mutual assent”, which is the underlying basis binding a person that reads a disclaimer notice.

Consider the following examples: “the owner of the property is hereby exempted” and “the owner, managing agent and any other employee is hereby exempted”. In the first example only the owner of the property is exempted from liability, while in the second example, employees of the owner and the managing agent of the property are included under the exemption clause. The first example would not have been sufficient if damage was caused to a person by the negligence of an employee, as employees were clearly not within the ambit of the notice. It is therefore important to ensure that the wording of a disclaimer is clear, unambiguous and is sufficient to protect all parties that need protection.

A further issue to take into account when the effectiveness of a disclaimer notice is considered is the question whether such disclaimer has been properly displayed. A disclaimer can only be effective when it is found that the disclaimer was displayed in an appropriate position, which would allow the reasonable person to have seen the disclaimer, or to ought to have seen the disclaimer. Practical issues, such as the size of the disclaimer, the distance from the viewer, the visibility, font and positioning of the disclaimer should be taken into account. This test is implemented as the content of the disclaimer can only fall within the knowledge of a person, when the notice is of such a nature that it is easily spotted by someone. When a disclaimer is affixed to a premise, it is therefore important that the above factors be taken into account.

It is clear that a disclaimer is an effective method of protection, especially when used in areas where large amounts of people visit frequently. However, the use of a disclaimer notice is a potentially risky practise, as it must be ensured that the wording and placement thereof is sufficient for the reliance thereon. It is recommended that an attorney be consulted before putting up such a notice.

Bibliography

Cases

Durban’s Water Wonderland (Pty) Ltd v Botha and Another (1999) 1 All SA 411 (A)

Government of the Republic of South Africa v Fibre Spinners & Weavers (Pty) Ltd 1978 (2) SA 794 (A)

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice

Are there limitations on ownership rights?

A1BIt is a recognised principle of property law that ownership does not confer absolute and unlimited entitlement on the owner, but that various limitations exist in the interest of the community and for the benefit of other people.

The most important limitation on the owner in the interest of the community as a whole is the payment of taxes to the state in respect of certain movable and immovable property. In the case of immovable property several measures make land available to a larger section of the community, which implies that the restitution of land rights and the provision of land will require measures for expropriation. Furthermore, a number of provisions deal with environmental conservation and physical planning which limit the owner’s entitlement in the interest of the community. Limiting measures in the case of moveable property prohibit the use of such property to the detriment of the community, for instance motor vehicles, fire-arms and dependence-producing substances.

There are also measures which limit the owner’s entitlement, not in the interest of the community, but in the interest of other individuals. The best known example in this case is neighbour law, which implies that the owner may not use his land in such a way that it constitutes an unreasonable burden on his neighbours. The criterion of reasonableness determines that, in these circumstances, the owner of immovable property may exercise his entitlements within reasonable bounds, and that the neighbouring owner or occupier must tolerate the owner’s exercise of his entitlements within reasonable bounds.

Other examples of the application of the criterion of reasonableness in the case of neighbour law are the obligation to lateral and surface support, measures dealing with encroachments, the mutual obligation regarding the natural flow of water and the elimination of danger.

Other people besides the owner may acquire entitlements (for instance use rights) in respect of the moveable or immovable property of the owner. Holders of limited real rights acquire entitlements in respect of the asset, which limits the owner’s ownership (dominium) as they burden the property. It is therefore enforceable against the owner and his successors in title. Certain creditors’ rights may also result in people acquiring entitlements in respect of the owner’s property. These rights are, however, only enforceable against the owner personally and do not burden the property as such, therefore it is not enforceable against successors in title.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

Abstract system of ownership acquisition

A2blIn South African law ownership can transfer by means of an original or derivative method.

The difference between these two methods are found in the fact that ownership by way of original acquisition proceeds without the cooperation of the previous owner compared to the derivative method which requires cooperation between the parties.

A discussion of the original method for acquires ownership acquisition falls outside the scope of this article and consequently examples will only be mentioned. They are prescription, attachment and mixing. The basis for original acquisition is that no intention is required between the parties. For example, if you lease a piece of land and later decide to build a swimming pool on it,  as soon as you put the pool in the ground you will become the owner of the swimming pool. The only possible remedy here for the lessee will be an enrichment claim. The lessee has to satisfy all the requirements for enrichment before he will be successful with his claim.

The second method for ownership acquisition is by using the derivative method. The main requirements for this form of ownership acquisition are that the parties must have a clear intention to transfer ownership and secondly there must be delivery or registration of the property.  The first requirement is selfexplanatory but it is important to be aware that a person’s legal status can play an important role in determining the validity of the transfer as you atleast have to be.

The requirement of delivery only becomes applicable if the parties intend to transfer movable property. There are a variety of different forms of delivery in South African law, but the most important are delivery with the long hand, delivery with the short hand, Attornment and constititutum possessorium. The requirement of registration only becomes important when the parties intend to transfer ownership in immovable property. Both delivery and registration must be accompanied with a clear intention to transfer ownership.

It is in the derivative form of ownership acquisition that a distinction should be made between the causal and abstract system. The causal system involves that ownership can only pass if the underlying agreement or obligation is valid. The system practically means that if the party had the intention to transfer ownership, but the actual contract is invalid ownership will not pass.

The opposite view is followed actual in the abstract system. South African law follows the abstract system. The abstract system means that if the underlying agreement or obligation is invalid, ownership will still pass as long as the parties intended that ownership pass together with the requirement of deliver or registration, as the case may be.

The abstract system provides protection to a bona fide third party, where the causal system neglects to provide the same protection. The short comings in the abstract system in South African law are compensated for in the field of undue enrichment law.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

Abstract system of ownership acquisition

A4blIn South African law ownership can transfer by means of an original or derivative method. The difference between these two methods is found in the fact that ownership by way of original acquisition proceeds without the cooperation of the previous owner, compared to the derivative method which requires cooperation between the parties.

A discussion of the original method for ownership acquisition falls outside the scope of this article and consequently only examples will be mentioned. They are prescription, attachment and mixing. The basis for original acquisition is that no intention is required between the parties. For example, if you lease a piece of land and later decide to build a swimming pool on it, you will become the owner of the swimming pool as soon as you put the pool in the ground. The only possible remedy here for the lessee will be an enrichment claim. The lessee has to satisfy all the requirements for enrichment before he will be successful with his claim.

The second method for ownership acquisition is by using the derivative method. The main requirements for this form of ownership acquisition are firstly, the parties must have a clear intention to transfer ownership and secondly, there must be delivery or registration of the property. The first requirement is self-explanatory but it is important to be aware that a person’s legal status can play an important role in determining the validity of the transfer. The requirement of delivery only becomes applicable if the parties intend to transfer movable property. There is a variety of different forms of delivery in South African law, but the most important is delivery with the long hand, delivery with the short hand, attornment and constitutum possessorium. The requirement of registration only becomes important when the parties intend to transfer ownership of immovable property. Both delivery and registration must be accompanied with a clear intention to transfer ownership.

It is in the derivative form of ownership acquisition that a distinction should be made between the causal and abstract system. The causal system involves that ownership can only pass if the underlying agreement or obligation is valid. This system practically means that if the party had the intention to transfer ownership but the actual contract is invalid, ownership will not pass.

The opposite view is followed in the abstract system, which is the system that the South African law follows. The abstract system means that even if the underlying agreement or obligation is invalid, ownership will still pass as long as the parties intended that ownership pass, together with the requirement of delivery or registration, whichever the case may be.

The abstract system provides protection to a bona fide third party, where the causal system neglects to provide the same protection. The shortcomings in the abstract system in South African law are, however, compensated for in the field of undue enrichment law.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

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