Rights in Property

By: Natacha Rey

The law of property is a branch of private law which regulates the relationship between persons and things, or property. This branch of law provides rules prescribing the manner in which someone acquires rights in property, the manner in which these rights can be transferred, and it provides the remedies available in the event of an infringement on such rights.

There are two main types of right that a person may hold in property, namely: real rights and personal rights.

The only real right recognised in our law is the right of ownership. This is where a person has complete title (or control) over a thing or property. It is important to note that a person may also hold a limited real right in relation to property. This is a subcategory of real rights but an important distinction is that they are held by a person in relation to someone else's property. One can never have a whole real right in relation to someone else's property.

A personal right is one against another person for the performance of an obligation, i.e.: the other person must either do or refrain from doing something. These rights are usually created by contract.

Real rights are often described as absolute rights and as such can be enforced against anyone. Personal rights on the other hand, can only be enforced against the other party to your contract.

An easier way to distinguish between real rights and personal rights is to keep in mind that real rights establish a legal relationship between a thing/property and a person, whereas personal rights establish a legal relationship between two persons (the relationship between the two persons could be relating to property but the rights are created in relation to the two persons and each other, and not in relation to either of them and the property).

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