The Adaptation of the Institution of Apartment Ownership to Civilian Property Law Structures in the Mixed Jurisdictions of South Africa, Sri Lanka and Louisiana

Van Der Merwe, C.G. (2008)

CITATION: Van Der Merwe, C.G. 2008. The adaptation of the institution of apartment ownership to civilian property law structures in the mixed jurisdictions of South Africa, Sri Lanka and Louisiana. Stellenbosch Law Review = Stellenbosch Regstydskrif 19(2):298-313.

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INTRODUCTION: Since the maxim superficies solo cedit disallows separate ownership of land and parts of a building, special legislation was necessary in South Africa, Sri Lanka and Louisiana to breach this principle of accession and legitimize the institution of apartment ownership in these mixed jurisdictions. At the time when urgent housing shortages, especially near centers of employment, compelled these jurisdictions to promulgate statutes to regulate apartment ownership, the most attractive workable precedents available were the common law statutes of New South Wales, British Columbia and certain United States’ statutes. The great success which especially New South Wales enjoyed in providing housing to thousands of Australians led to the transplantation of the New South Wales statute to South Africa and Sri Lanka. The impetus for the first generation Louisiana Horizontal Property Act of 1962 was the availability of Federal Housing Authority insured mortgages for condominiums in states where condominium regimes were authorized by local law. This Act is copied almost verbatim from the Arkansas Property Act, which in turn borrowed from the Puerto Rican statute altering the civilian terminology in that statute to suit common law requirements. Because of numerous shortcomings, the Horizontal Property Act was replaced by the Condominium Act of 1974 and finally the Condominium Act of 1979. Although these second and third generation Louisiana statutes conform to the terminology of the Civil Code, the latest Act borrowed heavily from the Uniform Condominium Act approved by the Commissioners on Uniform State Laws in 1977. The Uniform Condominium Act and the New South Wales strata legislation are the two most sophisticated common law statutes in the world.

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