10) Land Law i) Legal nature of land ii) Interests and estates iii) Freehold and leasehold iv)

Leases v) Easements LAND AS PROPERTY (Real Property) To the layman, "land" means any piece of ground or soil, i.e. the physical substance. But in la , the term "land" means! " a. The surface of the earth b. The things or physical nature belo or above the surface of the earth c. #ights or interests in land hich are $not of a physical nature e.g. #ents, profits and easements, fi%tures and attachments to the land permanently meant to benefit the land. The la relating to land is based on t o doctrines namely! a. The doctrine of tenure! &ccording to the doctrine of tenure all land is o ned by the state and is held by its citi'ens as tenants. (ne tal)s about holding or o ing an interest in land rather than the land. b. The doctrine of estates! &n estate means an interest for a definite period of time. CLASSIFICATIONS OF INTERESTS IN LAND &t common la , land rights are divided into three categories namely!" i. Estates. ii. *ervitudes and+ iii. Encumbrances. 1. ESTATES IN LAND "Estates" means a time or period of time in land. It is an interest in land that runs for a specific time. There are t o types of estates, namely! a. Freeholds and+ b. Leaseholds A. FREE OLD ESTATE This is an estate hose duration is fi%ed but uncertain. The holder of an estate in freehold is said to o n it until the time hen all his descendants ill have died and the land remains o nerless. In such event the land reverts to the government. Origin of free hold estate Fees simple estate as it as called under common la , as introduced to ,enya property la by the colonial government through principally t o statutes! i. The -./0 cro n land ordinance. This gave po ers to the 1overnor 23ommissioner) to sale cro n land to the settlers. ii. The -.-4 cro n land ordinance+ hich vested all lands including land settled by 5atives in the cro n. To implement these t o statues in ,enya, there ere series of land ordinances and finally the #egistered Land &ct 2#L&) 3ap 6//, hich as for the ultimate use in ,enya. In the #L& 3ap

6//, all fees simple estates are called Freehold estate. Freehold estates are of the follo ing types! 1. Fee !"#ple e!tate$ % This is the greatest estate in land hich may be held. The interest in the estate here continues as long as the tenant or any of his heirs survives. 7ere, the duration of the estate is fi%ed to the life of the tenant and his heirs. If no heirs e%ist, it reverts to the state. The ord 8Fees9 denoted that the estate could be inherited. :hile 8*imple9 meant and denoted those ho could inherit the estate. &. Fee ta"l e!tate$ % This gives a person only a life estate follo ed by successive interests of the descendants. If there are no lineal descendants, the estate ill revert bac) to the grantor or his successors. '. L"(e e!tate$ % & life estate lasts only during the lifetime of the o ner. :hen the o ner dies, no interest remains to pass to his heirs or by ill. It reverts to the grantor on the death of the guarantee. ). E!tate *per ++tre ,"e-$% This is an estate hich lasts for the life of another e.g. if property is given to ; in the life of <. if < dies before ; the property reverts bac) to the "guarantor 2settler) i.e. <. What are the characteristics or Freehold estates Estate? Being the largest estate one could en=oy at common la , it as+ a. >nlimited in scope ith unrestricted po er of use, abuse and disposal. b. &ny condition hich restricted the manner or its use as void. c. The o ner of a fee simple estate as not impeachable for misusing his land. d. 3ertain )inds of astes ere allo ed on a fees simple estate by common la such as! " i. &melioration aste ? This is the po er to alter the use of the land ith the vie to improving the @uality of land. ii. Aermissible aste ? These ere acts of omission on land hich could result in the detriment of the land. iii. Boluntary aste ? These ere acts of commission done deliberately on the land to the detriment of the land o ner. iv. E@uitable astes ? These ere anton acts of destruction hich a prudent person ould not do on his land. .. LEASE OLD ESTATES & lease is an interest hich confers a right to e%clusive possession of land for a definite period of time. It is clear from the definition that the essentials of a lease are! " -. The conferment of a right of e%clusive possession. 0. The lease must relate to a defined piece of land and+ 6. The lease must be for a period that is certain or capable of being ascertained. The person ho ac@uires a right to the land is called the lessee hereas the person from hom the lease ac@uires his interest in the land is )no n as the lessor. Type! o( lea!e! There are four types of leases, namely! " fi%ed term lease, periodic tenancy, tenancy at ill and, tenancy at sufferance. 1. F"/ed ter# lea!e$ % This is a lease for a fi%ed period e.g. 6/ years. It arises here the parties actually stipulate in the agreement the particular period in hich the lease ill be in e%istence. The main features of fi%ed term lease are!

a. It is created by e%press agreement and+ b. The term of the lease must be certain or ascertainable. &. Per"od"0 tenan0"e!$ " It continues from one period to another until it is brought to an end by proper notice. The term of the lease is rene ed automatically on e%piry date unless one of the parties gives notice of termination to the other party. This is a tenancy from year to year, half year to half year, month"to"month e.t.c. '. Tenan0y at w"ll$ % This is created here the tenant occupies the land ith the permission of the landlord on terms that the relationship may be terminated by either party at any time i.e. at ill. ). Tenan0y at !+((eran0e$ % This arises here after e%piry of a fi%ed period lease, the tenant continues to occupy the land ithout the landlordCs permission. In such situations the tenant continues to pay rent and the landlord accepts it. R"12t! and O3l"1at"on! O( Part"e! The rights and obligations of the parties are governed by their agreement and the court canCt interpret them other ise. (ne partyCs right is anotherCs duties or obligations. In the absence of an e%press agreement by the parties, the follo ing implied statutory obligations are applicable. Obligations of lessor (landlord) -). Duiet en=oyment! " The landlord covenants that the tenant shall have peaceful en=oyment of the land as long as the tenant pays rent and perform his other obligations. Duiet does not only mean noise free but also mean interfering ith the en=oyment of the tenantCs rights. 0). Fitness for habitation! " For properties governed by the #egistered Land &ct, there is a provision that, here a d elling house, flat or room is let furnished, there shall be an implied underta)ing by the landlord that the same is fit for habitation on the commencement of the lease. 6. Euty to repair! " The landlord shall underta)e all the e%ternal repairs of the premises i.e. staircases, corridors, paths and gardens if any. >nder the #egistered Land &ct, the landlord is re@uired to )eep the roof, main alls, main drains, common passages and common installations in repair. F. Eerogation from grant! " The landlord is not allo ed to use or to permit to be used any ad=oining or neighboring land of hich he is the proprietor in any ay hich could render the leased premises unfit or materially less fit for the purpose for hich they are leased. Chandran Grocers Vs. Kaur (1965) The plaintiff as a tenant of a shop as a grocer, via a tenancy agreement. There as a restriction on the lease that the defendant 2landlord) ould not let other shops to carry on the business of grocers other than the shops leased by the plaintiff. Later on, t o shops in the same premise changed from hat they ere selling and began to sell as grocers. The defendant as in deliberate breach of the contractual obligation to the plaintiff in relation to the other stores, and so he as entitled to damages. (ther obligations include+ 4. 7e must have capacity to grant lease i.e. 7e must not be a minor, lunatic etc. G. 7e must disclose any material defects to the tenantH lessee 2ITA&). I. 5ot to increase the rent as he li)es. J. To put the tenant in possession and continuously.

Obligations of Lessee (tenant) -). (bligation to pay rent or rates! " The tenant is under implied obligation to pay rent reserved or agreed. This duty continues as long as the tenant continues to occupy the property despite the occurrence of a catastrophe or calamity hich renders the property unfit the use for hich it is let. #ent may be paid in arrears or in advance. It is implied that the tenant ill pay rates and ta%es for hich the landlord is not directly liable. 0). Euty to allo landlord on premise! " The tenant is under an implied obligation to permit the landlord or his agent, at all reasonable times and after notice, to enter the premises and e%amine its condition2*ection -/J of ITA& and section 4F of #L&). 6). (bligation to repair leased premises and furniture! " The tenant is obliged to )eep leased premises in good condition. 7is responsibility is to underta)e internal repairs and return the premise in the condition he found it, sub=ect only to reasonable ear and tear or irresistible force. The tenant is not responsible for damages due to ordinary operation of natural causes and here the premises are rented hen furnished, the tenant is re@uired to )eep the furniture in good condition. :here the hole building is let unfurnished, the tenant should )eep the hole premises in repair.2The #L&, 3ap 6//) F). 5ot to commit astes and use premises in proper manner )eeping the interior in repair and clean. 4). 5ot to erect permanent structures on the leased premises and if he does so, he should remove them at the e%piry of the tenancy. G). 5ot to sublet or transfer the premises unless agreed by both lesser and lessee. The landlord should not ho ever unreasonably ithdra his consent. Ter#"nat"on o( Lea!e! & lease may be terminated in the follo ing ays! a). By notice! " by either the landlord or the tenant as provided in the agreement. If no such provision is made, then one can only give notice to e%pire at the end of the period of the lease. For periodic tenancies, a notice is given for the end of each tenancy. & proper notice has to be given in order for any subse@uent suit for eviction to succeed. b). By afflu%ion of time! " Leases must be for specific period and all interests created by the lease come to an end on the e%piry of that period of time or on the occurrence of the event determining the lease period. c). By surrender! " & lease is terminated by surrender here the lessee yields up possession to the lessor. *urrender may be e%press or implied. E%press surrender is effected by a registered instrument of surrender or by the ord 8*urrender9 being endorsed on the lease or counterpart. *uch endorsement has to be e%ecuted, attested, stamped and registered. Implied surrender occurs in the follo ing ays! " i. :here the tenant vacates the premises ith the consent of the landlord. ii. :here the landlord grants lease to a third party ith the consent of tenant. iii. :here the landlord grants to the tenant a ne lease hich is to commence during the currency of the e%isting one. iv. :here the tenant is allo ed to remain in occupation as a licensee paying no rent. d). By forfeiture! " There are statutory provisions that provide for forfeiture. >nder the transfer of property &ct of -.J0 of India, the right of forfeiture arises if the lessee i. Breaches any e%press condition hich contains a re"entry clause stating that in case of breach of any such condition, the lease shall be void.

ii. Is ad=udicated ban)rupt or becomes insolvent and the lease provides for reentry on such event. iii. Eenies the landlord$s title e.g. by paying rent to a third party or by claiming the title himself. >nder the #egistered Land &ct, forfeiture arises here the tenant has!" i. Bro)en an e%press or implied condition or+ ii. &d=udicated ban)rupt or being a company goes into li@uidation. e). By frustration! " & lease is terminated by frustration if the property is holly or substantially destroyed or rendered unfit for the purpose for hich it as let, unless by the actions of the tenant. f). By merger! " If the tenant ac@uires the landlords interest in any manner e.g. by sale or inheritance, the lesser interest is merged ith the greater estate. g). By fraud! " & lease may be terminated under contract la s e.g. it may be terminated here it as obtained by fraud. h). Eisclaimer! ">nder section 4J of the Ban)ruptcy &ct 2cap 46), a trustee in ban)ruptcy may disclaim any lease ith onerous covenants. &. SER4IT5DES *ervitudes are the rights that a person ac@uires over another$s piece of land. The main categories of servitudes are! a. Easements b. Arofits c. #estrictive covenants EASE6ENTS &n easement is an arrangement, hich allo s the proprietor of the land either to use the land of another in a particular manner or to restrict its use in a particular manner. Illustration! " &$s land borders that of B. & produces timber and the only ay he can transport his timber to the mar)et is through B$s land. & may enter into an agreement ith B hereby he ill ac@uire right of ay through B$s land is )no n as an easement. The land hich benefits from an easement is called the dominant tenement, hich the right is established is called the servient tenement. hile the one over

7o are easements createdK a. By grant! " By an instrument in prescribed form or by preservation per section IF of #egistered Land &ct. b. By adverse possession! " easement may be ac@uired by adverse possession under the provisions of the Limitation (f &ction &ct 23ap. 00) by t enty years of peaceable rightful and uninterrupted user. The interest creating easement must specify! a. 5ature of the easement i.e. The period for hich it is given and if it is sub=ect to any condition, limitations or restrictions intended to affect its en=oyment. b. The land burdened by the easement i.e. *ervient tenant. c. The land hich en=oys the benefits of the easement i.e. the dominant tenant. Elements of Easements! " For there to be an easement the follo ing conditions must be present!

" T o pieces of land! " There must be t o ad=oining pieces of land. These are the dominant and a servient tenant. " By t o different persons! " The dominant and servient o ners must be different people. This is because you cannot have easement on your o n land. " &n easement must accommodate the dominant tenant i.e. there must be a value to hich easement is based. 7o are easements terminatedK a. By a duly e%ecuted release in the prescribed form 2>nder *ec. .I of #egistered Land &ct" 3ap. 6//). b. By e%piry of time. c. By the occurrence of the events upon hich the right as intended to determine. d. By an order of the court. PROFITS &lso )no n as profits a prendre. & profit is a right hich allo s someone to go over another person$s land and ta)e a particular substance from that land hether soil itself or a product or the soil. RESTRICTI4E CO4ENANTS (ne of the determining features of freehold is the po er to use and alienate Hdispose the land. 7o ever today there are ordinarily a fe recogni'ed restrictions to his po ers and it is called #estrictive covenant. & restrictive covenant is an agreement bet een t o land"o ners hereby one of them promises that other that he ill not do some certain things on his land. E%ample! " If ; and <are o ners of ad=oining pieces of land. ; intends to build a nursery school on his land. *hould < )eep bees on his land, there is a possibility that the bees may attac) children on ;$s piece of land. To prevent such occurrence, ; may get < to promise not to )eep bees on his land. There is said to be a restrictive covenant bet een the t o. & restrict covenant has the effect of limiting the manner in hich a lando ner may use his land. The limitation being necessary for the benefit of an ad=oining piece of land. The restriction is for the benefit of the land and not the land o ner. By the restrictive covenant, other parties ho are not privy to the original bargain are bound by it. E%ample! " if in the above e%ample < sells his land to L hile ; retains his, L ill be bound by <$s promise not to )eep the bees. #estrictive 3ovenants include! i. 3aution. ii. Inhibitions. iii. 3aveats. iv. License. ". Ca+t"on This is an entry into the register by a person claiming a right hich is contractual or other ise. The effect of entering caution into the register is to forbid the dispositionHtransferHlease etc. of the land. Thus as long as the caution stands, no disposition or other ise dealing ith land hich pre=udices the interest in land inconsistent ith the caution shall be registered ithout consent of the person ho entered caution or the court.

"". In2"3"t"on. &ny person claiming any interest in land under any of these &cts may place a caveat by filling the prescribed forms and attaching it ith an affidavit and filling it ith the registrar. """. 0a,eat & caveat prohibits the transfer or any other dealing in land. The registrar may also place a caveat on any land here he is satisfied that fraud has or is li)ely to occur. The difference bet een inhibition and caveat is that the former is done through the #egistered Land &ct" 3ap 6// hile the later is done through #egistered Titles &ct or 1overnment Land &ct. """. L"0en!e License is the relationship that can be described as the permission granted by the licensor that allo s a licensee to do something on the land hich ithout it ould have been unla ful. It is an act by the grantor that in effect ould legitimi'e hat in tort ould amount to trespass. '. ENC56.RANCES This is here a lando ner ho is in need of some money offers his land to another person so that the other may lend him money and holds the land as security until the money is repaid. This relationship resulting from such arrangement is called encumbrances because they are burdens on the borro er ho must repay the loan ith interest hile the lender ill have an interest in the land. Encumbrances ta)e the form of charges and mortgages. 6ORT7A7ES & mortgage is a conveyance or assignment of land ith a promise for re"conveyance or re" assignment. Therefore under a mortgage, the lender$ becomes the o ner of the land and the borro er retains possession. *ection 4J2a) of the Transfer of Aroperty &ct -JJ0 of India defines a mortgage as! "The transfer of an interest in specific immovable property for the purpose of securing the repayment of money advanced or to be advanced by ay of loan on e%isting or future debt or the performance of an engagement hich may give rise to a pecuniary liability". C AR7ES & charge confers rights to the chargee to enable him to recover his money plus interest over the security of land ithout the land being conveyed or assigned to him. (nce the money loaned plus interests are repaid in full, that status @uo before the charge as entered is restored by discharging the liability of the borro er and land thereof. *ection 6 of the #egistered Land &ct 2#L&) defines a charge as!" "&n interest in land securing the payment of money or money$s orth or the fulfillment of any condition, and includes sub"charge and the instrument creating the charge ". *ection G42F) of #L& provides! 8& charge shall not operate as a transfer but shall have effect as security only". Creat"on o( 6ort1a1e! and C2ar1e! The follo ing classes of mortgages may be created under section 4J of the Transfer of Aroperty &ct -JJ0 of India! -). *imple mortgage! " In simple mortgage a borro er binds himself to repay the loan ith a proviso that the lender can cause the security to be sold on default. 0). Mortgages by conditional sale! " This is an arrangement here the borro er ostensibly sells the property to the lender sub=ect to the follo ing conditions that! a. (n default of payment, the sale shall become absolute or+

b. (n payment of the mortgage debt, the sale becomes void or+ c. (n payment of the debt, the property ill be transferred to the borro er. 6). >sufructuarv mortgage! " This involves the delivery of possession and the application of rents and profits to interest and Hor the principal amount borro ed. This is e@uivalent to self ? redeeming pledge. The mortgagee has no po er to sell or foreclose. F). English mortgage! " 7ere the borro er binds himself to repay the mortgage money on a certain date and transfers the mortgaged property absolutely to the lender. But this is sub=ect to the provision that the lender ill transfer it to him upon repayment of the mortgaged money. 4). E@uitable mortgage! " This does not entitle the mortgagee to sell the property. *uch mortgage arises by simple deposit of title deeds ithout delivery or possession to the lender. M(#1&1EE$* &5E 37&#1EE$* #EMEEIE* -. Foreclosure This is an order of the court hich completely bars the borro er from his right to redeem the property. This remedy arises hen! a. The mortgage debt has become due and payable. b. Eecree for the redemption of the mortgaged property has not been made and+ c. The right of foreclosure is not e%cluded by the mortgage instrument. Foreclosure is only available by order of court. The right to foreclose arises hen the legal right to redeem has passed. &part from transferring o nership to mortgagee the foreclosure order e%tinguishes all subse@uent but prior mortgages. 0. *tatutory po er of sale This remedy arises simultaneously ith the remedy in foreclosure. It is the most resorted to in repayment or debt though most draconian remedy. The lender$s statutory po er of sale is e%ercise hen! a. There is default in repayment of the debt or any part thereof for three Months after receipt of the notice by the borro er to repay the same or+ b. Interest is in arrears and unpaid for t o months or+ c. There is breach of some other covenant in the mortgage instrument. 6. 3ommon la po er of sale arises! " :hen the mortgage money is due i.e. hen the contractual date of redemption has passed or hen another specified event renders the money due and payable immediately. " The po er of sale is e%pressly provided for by the instrument and has been attested and there is a certificate by an advocate certifying that he has e%plained to the borro er the effect of section G. and the borro er has understood the same. F. #ight to appoint a receiver This arises and becomes e%ercisable in the same circumstances as the po er of sale. The receiver is not a manager. 7is duty is to collect rents, profits and income relating to the property. The #egistrar 1eneral is the appointed receiver of all government institutions. (nce the monies o ed from the debt is paid through the periodical collections from the property, the land and property may then revert bac) to the mortgagor or chagor. 4. #ight to consolidate This is the e@uitable right or a person in hom t o or more mortgages are vested to refuse to allo one mortgage to be redeemed unless others are also being redeemed alongside. The right is e%ercisable only! a. :hen the right is reserved and+ b. The legal date for redemption of both or all mortgages has passed and+ c. Both or all mortgage have been made by one borro er and+ d. The mortgages are vested in the same person. G. *uit on personal covenant & lender may sue on the borro er$s personal covenant to repay the principal and interest. This remedy arises as an alternative to foreclosure. This right can only be

e%ercised here the mortgagor or chargor e%ercised a personal covenant to repay, especially if the mortgagee or chargee foresees that the mortgagor may not be able to clear the accrued interest and the principal amount, or that the property may get destroyed due to the mortgagor.s negligence. E@uity of #edemption There are t o aspects! -. &n e@uitable right to redeem. 0. 3ontractual right to redeem. E@uity provides that one ho charges his land must be in a position to redeem his land on due payment of principle sum and interest thereof. 3ontractual right or redemption arises from the e%press agreement of the parties to hich they set a date for repayment to be made upon hich the right of redemption arises. In e@uitable right the mortgagor does not lose his right to redeem. 7e can never be denied his right of redemption. The e@uity or redemption is distinct from the e@uitable right to redeem. E@uity or redemption is a sum total or a right that remains ith mortgagor or charger at the time the mortgage is e%ecuted. &n e@uitable right to redeem is merely a right hich comes after due date to pay has lapsed. This means that there is no fetter or clog of the charger or mortgagor.s right of redemption. In the case of 5oa)es Bs. #ice 2-./0). The follo ing principles regarding e@uity of redemption ere outlined+ i. &nything inconsistent ith the right of redemption ill be void. ii. &ny e%press stipulation to the effect that the property shall vest in the chargee or mortgagee is absolutely ineffective. iii. Aostponement of redemption is valid if the mortgage as a hole is not oppressive or unconscionable that e@uity ould not enforce it and ould not ma)e e@uity a mere illusion. iv. #edemption should be free form any condition, a clog or fetter and once redemption has been e%ercised, it should be total. CO%O8NERS IP This arises here t o or more persons are entitled to the simultaneous en=oyment of the same property. The t o main types of co"o nership are! a. 9o"nt Owner!2"p This refers to a situation hereby t o or more persons en=oy interest in property as if they ere one single o ner. :hen a =oint tenant dies, all his rights and interest pass to the survivors under the doctrine of jus accrescendi i.e. right of survivorship. There e%ists only one indivisible title and no one ould have e%clusive right to any separate portion or share in the property. & =oint tenant cannot pass his interest to his heirs upon death. This is because he does not o n any transmissible right i.e. transferable rights. This means that surviving =oint o ners becomes the sole o ners of the hole interest in land. The rules or intestacy do not apply hen the property is under =oint tenancy. In order to create a =oint tenancy, there must be four unities of property as discusses bello + i >nity of possession ii. >nity of interest

iii. >nity of title iv. >nity of time. >nity of possession! ">nity of possession means that each of =oint o ners is entitled to every portion and the hole of the property. 5o =oint o ner can point to any part of the land, for e%ample, as his o n to the e%clusion of any other =oint o ner. >nity of interest! " This means that the interest of each =oint tenant is same in e%tent, nature and duration. Therefore there can be no =oint co"o nership bet een a freeholder and a leaseholder of property because the nature of interest is different. >nity of title! " >nity of title is meant that the title of both or all persons must be created by same instrument of registration e.g. here land is purchased by ; N < and *imultaneously conveyed to them =ointly. >nity of time! " &ll the proprietors must vest in the same time. :here a transfer is e%pressed to ta)e effect on the happening of any event or on the fulfillment of any condition at any future time is void. Ooint o nership is best e%emplified by ife H husband property. (ther than the four unities above mentioned there is the principle of Ous"accrescendi, i.e. the right of survivorship. This right means that on the death of one =oint o ner, his interest in the property passes to the other =oint o ners by the right of survivorship. This process goes on until only one"survivor remains ho then ill hold the property as the sole and absolute o ner. In other ords, on the death of one =oint co"o ner, his shares pass to the surviving co"o ners and not his personal representatives. 3. Co##on Owner!2"p In common o nership, each proprietor holds a separate share in the property but hich has not been divided among the common o ners. >nder this, each o ner in common has fi%ed and separate but undivided shares in the property. 7ere there is no right of survivorship and only the unit of possession e%ists. Therefore a proprietor in common has no po er to deal ith his undivided share in favor of any person other than another proprietor in common of the same property e%cept ith the consent of the other proprietor in common is free to dispose of his interest in any manner he li)es but he must first see) the consent of other common o ners. Further upon the death of a proprietor in common, his shares are transferred to his dependants or personal representatives. The rule of giving proprietorship in common includes the re@uirement that here property is to be disposed, it must first be offered to members of co"o nership. 3ommon tenancy is best e%emplified by business partnership. The principle of jus accrescendi does not apply to tenancy in common. This means that if a tenant in common dies his interest passes to his successors in title. The right of survivorship is the ma=or distinction bet een a =oint o ner and an o ner in common. Ter#"nat"on o( Co%Owner!2"p By partition! " This happens here voluntary partition of the property is done by the co"tenants hereby each tenant becomes a sole tenant of the piece allotted to him. By merger! " 7ere the property subse@uently becomes vested in a sole tenant this operates to terminate co"o nership. By sale! " :here a co"o ner sells the property, their co"o nership is brought to an end.

By severance! " :here =oint tenants decide to divide the tenancy into distinct shares, the =oint tenancy is terminated and converted into a tenancy in common.