Replacing property rules with liability rules : encroachment by building

Van Der Walt, A. J. (2008-12)

CITATION: Van Der Merwe, A. J. 2008. Replacing property rules with liability rules : encroachment by building. South African Law Journal, 125(3):592-628.

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According to South African common law, movables attached permanently to land lose their independence and become part of the land; the landowner 'acquires' ownership of them through accession. In encroachment cases it has accordingly always been said that the affected landowner could demand that the encroaching structures be removed, but since the decision of the Orange Free State High Court in Rand Waterraad v Bothma 1997 (3) SA 120 (O) it appears as if the South African courts might be inclined, in certain instances, to leave the encroachment in place and order the encroaching neighbour to pay compensation instead. At least in some cases, this replacement of a property rule with a liability rule might appear just and it generally seems to conform to trends in other modern legal systems. In some cases South African courts have gone even further and ordered that the land affected by encroachment be transferred to the encroacher against payment of compensation. Quite apart from the fairness of replacing injunctive relief with compensation, this raises the further question whether such a forced sale of land is legitimate in terms of s 25 of the South African Constitution.

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