- Information
- AI Chat
Law of accession study sheet
Property Development (CON5006Z)
University of Cape Town
Related Studylists
LawPreview text
Accession Study Sheets
Please read the following sheets in conjunction with the notes you have been given in class. These are just study notes which you must read as a supplementary reading
Almost always, you will be faced with deciding whether or not the moveable thing (accessory) has acceded to the immovable thing (principle) in terms of inaedificatio. (know the Latin , love the Latin ,use the Latin).
Accession is by its very nature, an original mode of acquisition of ownership ( a way in which one becomes owner of something) and occurs where an accessory thing loses its independence and forms part of the principal thing. Inaedificatio is a form of accession in which accessory things such as buildings are attached to the principal thing which is usually land. In general, the owner of the land or the immovable thing will become owner of the combined thing(try and see it as the “flexible attaches to the inflexible” or the child will always be carried by the parents and not the other way around. In this analogy , the parent is the immovable thing and the child is the movable)
So how do we determine if inaedificatio has occurred? Usually a court will consider three factors:
- the nature and purpose of the movable;
- the manner and degree of attachment and lastly
- the intention of the owner/annexor at the time of attachment (Case authority for these suppositions is found in MacDonald v Radin( YOU MUST READ THIS CASE WITHOUT FAIL); Standard Vacuum; Melcorp; Konstanz).
In considering the nature and purpose of the object, a court will look at the size and weight of the object (Standard Vacuum) as well as whether the object is capable of or destined to be permanently attached (Senekal)
In considering the terms of the manner of attachment, the court will look at whether the object is portable or firmly in place and whether it can be removed by ordinary means without injury to itself or the land (Standard Vacuum). In addition, courts will consider whether the movable would have any use or utility after detachment
Take due notice of the fact that courts have been reluctant to hold that economical or functional attachment is sufficient to constitute an attachment. As an example review the facts in Melcorp and you will see that the court held that a lift did not accede to a building because although it formed an integral functional part of the building, it was not physically integrated and could be removed.
With regards to the notion of intention, accession is an original mode of acquisition and thus like all original modes, in theory, intention should not be considered as a determinative element and the consent of previous owners should be irrelevant. However, in a number of South African cases, courts have emphasized intention as a crucial factor in determining whether a movable has acceded to an immovable.
According to the traditional approach which is explicitly set out and illustrated in Theatre Investments and in Standard Vacuum, the subjective intention of the owner/annexor can only ever be relevant where the two objective factors (nature of movable / manner and degree of attachment) are indecisive.
There is however, the so called ‘ new approach’ as seen in the two cases : Kostanz and in Melcorp. According to this approach,the subjective intention of the owner/annexor is the decisive factor and the other object factors shall only ever amount to subsidiary or external indicators. In the event that the owner and annexor of the accessory are not the same person, then the intention of the owner is decisive (Konstanz). In addition, intention must be evaluated at the time of attachment.(think of it as the equivalent of the criminal law contemporaneity principle but in this case , intention must occur at the time of attachment or must be seen from that moment )
Law of accession study sheet
Course: Property Development (CON5006Z)
University: University of Cape Town
This is a preview
Access to all documents
Get Unlimited Downloads
Improve your grades
