Distinction between real rights and personal rights

What is it about?

The focus of this article in two parts will be on the recognition of new categories of real rights by the South African courts for purposes of registration in the deeds office. The registration provisions of the DRA are introduced in the first part of this article. Real rights are registrable in the deeds office whilst personal rights are not. The theoretical distinction between real rights and personal rights, which focuses on the features of and characteristics of such rights, will be discussed in the first part of this article. The distinction between real rights and personal rights against the background of the divide between ownership and limited real rights, especially within the context of the subtraction from the dominium test, will form the second part of the article.

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Why is it important?

Only real rights are registrable in the South African deeds registration system and the list of registrable real right is not restricted (not a numerus clausus system). The Deeds Registries Act does not define registrable and unegistrable personal rights clearly. It becomes the task of the courts to determine the nature of rights.

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