Professional Documents
Culture Documents
IN LAND 1 (LPL
207)
CONCEPT OF
PROPERTY/OWNERSHIP/POSSESSION/TITLE.
WHAT IS PROPERTY?
appropriation of an object by the individual and the
acceptance of this appropriation on the part of the rest of the
society. (Bhalla)
An institution which regulates
individuals with respect to things.
relationships
between
PROPERTY RIGHTS
OWNERSHIP
RIGHTS OF OWNERSHIP
POSSESSION
POSSESSION-CONTD
POSSESSION-CNTD
SOUTH STAFFORDSHIRE WATER COMPANY VS. SHARMAN
(1896) 2 Q.B.44.
Application of the notion of de facto control
. where a person has possession of house or land, with a
manifest intention to exercise control over it and the things which
may be upon or in it, then, if something is found on that land,
whether by an employee of the owner or by a stranger, the
presumption is that the possession of that thing is in the owner of
the locus quo.
THEORIES OF POSSESSION
TITLE
TITLE -CONTD
LAW OF PROPERTY
LEGAL CONCEPTION OF LAND
DEFINITION OF LAND
DEFINITION
Case of Mines
(1567) 1 Plowd 310
OF LAND....CONTD.
DEFINITION OF LAND-CONTD
DEFINITION OF LAND.....CONTD
DEFINITION OF LAND...CONTD
(ii) The object of annexation.
(a) Purpose of annexation as disclosed by
surrounding
circumstances; (Botham
.vs. TSB Bank plc (1996) 73 P
& CR).
(b) Duration of the annexation; (Botham-
supra).
DEFINITION...CONTD
ESTATESIN LAND
ESTATE IN LAND
descends to his
to the
ESTATES IN LAND
Fee simple, Fee tail, and life estate constitutes the three
freehold estates. reasons:(i) Originally only a person who held by
a free
tenure could hold one of these
estates in land.
(ii)
ESTATES IN LAND
LEASEHOLD ESTATE-is that estate in land that an individual or
group of persons holds for a specific period of time. Such an
interest is generally known as a lease or tenancy. principal
categories of leases are:
fixed term of certain duration
fixed term with duration capable of being rendered certain and
tenancies at will and at sufferance
SERVITUDES
EASEMENTS
Kamau .vs. Kamau (1984) 1 KLR
EASEMENTS
EASEMENTS
EASEMENTS
Distinction between Easement and License-a licensee allows one to
do something that would, without the license, be trespass.
The rights do not include: carrying away anything from the servient land
and exclusive possession of any land.
EASEMENTS
Creation of Easements
Legal & Equitable Easements.
Creation of Legal Easements
(a) By Statute- ss 136-148 of the Land Act, 2012, ss 28 and 98-100
of the Land Registration Act,2012 and s. 22 of the Water Act.
(b) By Prescription- s. 32 Limitation Actions Act
EASEMENTS
(Govindji & another v Sifa Insurance Company Ltd[2003] eKLR)an easement of way over the plaintiffs plot could only be
acquired if the defendant had enjoyed access to that way
peacefully and openly as right and without interruption for 20
years since the plaintiff acquired the property.
EASEMENTS
(c) By Deed/Registered Disposition- created by deed (unregistered
land), or by registered dispositions entered on the register of titles
Not so
however, for the furrow and water
from the river to the land of Gregory
[here the respondent] (the dominant
tenet) for these are not easements of
necessity and do not arise from
operation of law but were created and
must be reflected in the certificate of
title or else they are not legally
enforceable
(registered land).Justice Kneller in Kamau Case
EASEMENTS.
EASEMENTS
Characteristics of an Easement
Ellenborough Park [1956] Ch 131, 163,
EASEMENTS
(i)
There must be a dominant tenement and a
tenement.
servient
EASEMENTS.
Alfred F Beckett Ltd v Lyons [1967] Ch 449, 483, an
essential element of any easement that it is annexed to land and
that no person can possess an easement otherwise than in respect
of and in amplification of his enjoyment of some estate or interest
in a piece of land.
London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd
[1994] 1 WLR 31, 36. it is trite law that there can be no
easement in gross
EASEMENTS
dominant
EASEMENTS
EASEMENTS
EASEMENTS
It is unlikely that a right which confers a
purely recreational useron the dominant
tenement will be accepted as an easement.
EASEMENTS
EASEMENTS
(iv)The right which the easement
purports to
create must be capable of forming the subject matter
of a grant
EASEMENTS
To avoid capricious and personal
EASEMENTS
Extinguishment of Easements
By Statute
Exercise of statutory power of sale.
By express release.
By implied release/abandonment.
On termination of the estate on which the easement.
PROFIT A PRENDRE
a right to go on another persons land, to take a particular
substance from that land whether it is the soil or products of the
soil. (e.g. sand, gravel, trees, etc).
Types of Profits
(i) Profits appurtenant-annexed to an estate in the dominant
land and runs with the land.
Such profits should comply with the characteristics set out for
easements in Re Ellenborough Park. [1956]
PROFIT A PRENDRE
PROFIT A PRENDRE
RESTRICTIVE COVENANTS
RESTRICTIVE COVENANT
(ii)
The covenant must have the object of protecting land which,
at the date of the covenant belongs to, and after the date of the
covenant, is retained by, the
covenantee.
(iii) At the dates of the covenant and of the
conveyance or
assignment and at the date
of the breach complained of, the
covenant must be capable of protecting the land intended to be
protected; and
RESTRICTIVE COVENANT
sale, mortgage
RESTRICTIVE COVENANTS
Creation of Restrictive Covenants
RESTRICTIVE COVENANT
Intervention of Equity
In equity, the burden of a restrictive covenant could be enforced
under the rule in Tulk v Moxhay provided:
It was the common intention of the parties that the covenant
should benefit the land of the covenantee.
The assignee of the covenantee must show that the benefit of the
covenant has passed to him.
RESTRICTIVE COVENANT
Some methods only possible within the ten (10) mile strip at
the coast under the jurisdiction of Zanzibar sultanate.
1895 administration agreement between the IBEAC and the
British Government conferred the latter control over all rights
in land ceded to the former by concession agreement which
the sultan of Zanzibar had signed in 1898.
(ii)
The Act was also extended past the Sultans dominions even
though there was no justification to do so
(iii) Opined that the Foreign Jurisdiction Act of 1890 gave the
Crown the power of
disposition over waste and unoccupied
land
Revisions incorporated in the East Africa (lands) order in council of
1901, Crown Land Ordinance (1902)
The colonial government had to guarantee ownership beyond the
10 mile coastal strip to attract private developers.
LEGISLATIONS.
(i)
()
facilitate
Grant leases of agricultural land for a period of 999 years and for a
period of 99 years for town plots.
Power to subdivide town plot for purposes of construction.
Power to reserve from sale, lease or other disposal any piece of
Crown land required for use by natives.
Africans occupying the reserves were not vested with any rights.
(ii)
()
()
()
its
own
registration,
substantive
and
CLASSIFICATION OF LAND
The Land Act classifies land as Public land, private land, and
community land.
(i) Private Land.
land held by a private citizen or by a group of individuals or a
company.
leasehold or freehold interest in the land.
Registration is conclusive proof of ownership.
Non- citizens leasehold for 99 years (definition of non-citizen
proffered in the Constitution)
CLASSIFICATION OF LAND
CLASSIFICATION OF LAND
CLASSIFICATION OF LAND
CLASSIFICATION OF LAND
identified.
CLASSIFICATION OF LAND
by an Act of
defined by an Act
(i) the territorial sea, the exclusive economic zone and the sea
bed
(j) the continental shelf
(k) all land between the high and low water marks.
CLASSIFICATION OF LAND
CLASSIFICATION OF LAND
(iii)Community Land.
CLASSIFICATION OF LAND
land that is
lawfully held, managed or used by specific communities as
community forests, grazing areas or shrines
ancestral lands and lands traditionally occupied by hunter-gatherer
communities; or
lawfully held as trust land by the county governments, but not
including any public land held in trust by the county government
under Article 62 (2).
CLASSIFICATION OF LAND
Ndungu Report at page 52
The only ways in which trust land can be
legally
removed
from
the
communal
ownership
of
the
people
is
through
adjudication and registration or Setting
Apart. Adjudication and registration removes
the particular lands from the purview of
community ownership and places them
under individual ownership. Setting apart
removes the trust lands from the dominion
of community ownership and places them
under the dominion of public ownership.
CLASSIFICATION OF LAND
Assignment.
(i) Joseph Letuya & 21 others v Attorney
[2014] eKLR
with the
LICENCE
a permission, which is given by one person (an interest holder
in land) to another person, to enter upon his/ her land and do
something or perform an act on that land. Without this
permission, such entry by that other person on the land would
be unlawful and hence, a trespass.
THE MORTGAGE/CHARGE
A mortgage or charge relationship arises where a landowner
(or interest holder) who is in need of some money offers
his/her land to a bank or other financial institution as security
in return for a loan. This process is called mortgaging or
charging. (To be handled extensively under Law of Property II)
Registration of Deeds.
()
()
()
prima facie proof of the fact that the transaction in question did
occur.
()
REGISTRATION OF TITLE
The register is kept at the lands office, the central registry in the
lands office.
The register itself refers to the official record containing details of
ones estates (freehold or leasehold), particulars of the property
and the interests that affect the property
The register can also be used in reference to the entire index of
many individual registers that comprise the sum total of all titles
relating to registered land in the country.
property section
(ii)
the
Registration of
documents/Deeds
PRINCIPLES OF REGISTRATION
PRINCIPLES OF REGISTRATION
PRINCIPLES OF REGISTRATION
PRINCIPLES OF REGISTRATION
There are principles relating to the Torrens System
PRINCIPLES OF REGISTRATION
EFFECTS OF REGISTRATION.
EFFECT OF REGISTRATION
EFFECTS OF REGISTRATION
Overriding interests;
time of
EFFECTS OF REGISTRATION
charges for unpaid rates and other funds which, without reference to
registration, are expressly declared by any written law to be a charge upon
land
rights acquired or in process of being acquired by virtue of any written law
relating to the limitation of actions or by prescription
electric supply lines, telephone and telegraph lines or poles,
pipelines, aqueducts, canals, weirs and dams erected, constructed or laid in
pursuance or by virtue of any power conferred by any written law; and
KENYAN POSITION
(i)
(ii)
(iii)
(iv)
LEGAL
POSITION
ON
NONCLARKE & SONDHI (1963) E.A. 17
REGISTRATION
The lessor purported to lease out certain
premises to the
lessee for a period of 3 years at an agreed annual rent
which was to be paid in specified monthly instalments. The
lessee had possession of the premises and in the course of
time fell into rent arrears thereby forcing the Lessor to bring
an action for recovery of the same. In his defence the
Lessee introduced or contended that the Lessor had no valid
cause of action owing to the fact that the lease was not
registered as was by law required under the provisions of
the RTA (repealed) and it was this position that on account
of this fact that the entire arrangement was void or
unenforceable and that such an arrangement was incapable
of passing any legal estate in land. In the opinion of the
court, the unregistered lease could operate as a contract
inter parties and consequently the Lessee could not escape
to pay any rents due.
SOUZA FIGURIDO
& CO. LTD
V. MOORINGS
LEGAL
POSITION
ON
NON- HOTEL LTD (1960)
EACA 926
REGISTRATION