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n South African Law Journal - Inaedificatio revisited : looking backwards in search of clarity

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Abstract

Standard property law textbooks and latter day case law describe two approaches (a 'traditional' and a 'new' approach) that may be used to determine the occurrence of accession of movable to immovable property (inaedificatio). Both approaches use the same legal framework that facilitates an objective enquiry into whether, as a matter of fact, the movable has acceded to the immovable property. The enquiry is based on an assessment of the nature and purpose of the movable, the manner and degree of its attachment to the immovable and the intention underpinning the attachment. In cases where the facts unequivocally show the presence or not of a permanent join, both approaches usually arrive at the same answer. This is because the visibly obvious cannot easily be overridden. However, in situations where the objective assessment leads to an equivocal result, the approaches seem to diverge on the role and scope of the intention factor, resulting in different answers being reached.


It is argued here that South African law does not have two approaches to inaedificatio. Careful scrutiny and analysis of the cases show very little evidence for the proposition that there are two approaches. Instead, there is evidence that academic comment probably influenced the view that some courts approach inaedificatio assessment differently, especially in the context of acquisition of ownership. Case law subsequent to 1979 tends to perpetuate the idea that there is a dichotomy.

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/content/ju_salj/128/1/EJC53956
2011-01-01
2016-12-07
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