NEW LAND AND PROPERTY LAWS-CLASS NOTES

Fixtures/Chattels
The fact of whether a chattel has been affixed to land so as to become part of the land is a question of law depending on certain circumstances

      i.        The degree of annexation

     ii.        The object of annexation

The general rule is that a chattel is not deemed to be a fixture unless it is actually fastened to or connected with land or building. Mere juxtaposition or the laying of an article however heavy upon the land does not prima facie make it a fixture even though it subsequently sits on the ground. If a super structure can be removed without losing its identity it will not in general be regarded as a fixture. With regard to the object of annexation the test is to ascertain whether the chattel has been fixed for its mere convenient use as a chattel or for the convenient use of the land or building. It has been held elsewhere that this maxim has no application in Kenya.

This is so because under Sec 108 of Indian Transfer of Property Act, a lesee may even after determination of the lease remove at any time while still in possession of the property leased, all things which he has attached to the earth provided he leaves the property in the state in which he received it.

In the case of Shaw vs Shah Vevshi Devshi the defendant, shah obtained 2 decrees for execution against a lesee of a sisal plantation which had certain machinery. The lesee filed objection proceedings against the attachment by the plaintiff.  It was held that the machinery of this nature formed part of immovable property and were included in the charge over that property provided they were fixed for beneficial use and improvement of that property. They were accessory thereto and they were for the beneficial enjoyment of the land and they were for the permanent enjoyment of the land.

As a general rule, unless an item is physically fixed to the land it will not be considered as a fixture. Items which rest on the property by their own weight such as a Dutch barn, are likely to be regarded as fixtures. Similarly a greenhouse which is not physically attached to the land and which is moved periodically to various sites on the land will not be deemed to be a fixture. Although it is generally true to say that an item will not be regarded as a fixture unless it is physically attached to the land that alone is insufficient. The court will look at the purpose of the annexation to determine whether something is or is not a fixture and in deciding this matter how the parties choose to describe a particular object is not administrative.

 In the case of Leigh-vs- Taylor, a tapestry attached to a building by wooden frames was held not to be a fixture. The purpose of the attachment to the building being to enable the tapestry to be enjoyed as an ornament rather than to enhance the building.

In Berkley-vs-Poullette, the principle issue in dispute was whether paintings screwed to the wall and a large sandal on a plinth and a statue weighing half a ton were fixtures. The court of appeal held that they were not fixtures. Scarman LJ, considered that the starting point in determining this issue was Leigh vs Taylor and the essential issue is whether the purpose of annexation was to enjoy the pics as pics or to enhance the structure of the building.

In the case of Holland-vs-Hodgson, Blackburn J explained that blocks of stones placed on top of another without any mortar for the purposes of forming a stone wall would become part of the land although the same stones if deposited in a building yard and for convenience sake stacked on top of each other in the form of a wall would not form part of the land. The issue in cases of this nature seems to be the intention of the party constructing the item in question and the damage which would be caused to it by removing it.

When describing property one will come across the terms fixtures and fittings.  A fixture is something which due to its attachment to the land becomes part of the land itself. Fittings on the other hand are chattels which are physically on the property but are not part of it. What determines whether an item is a fixture or a fitting is the degree of attachment to the land. There is another category of items that are brought to the land and although they are not fixture per se, they become part of the land.

This issue arose in the case of Elite stone ltd-vs.-Morris where the plaintiff owned land on which there were constructed wooden bungalows. The bungalows rested upon concrete pillars which were attached to the land and to remove them from the land would have required demolition. The issue that arose was whether the bungalows were a building or a chattel. The House of Lords unanimously held that the bungalows were part of the land. Lord Lloyd of Berrick adopted a tripartite test as follows: an object which is brought onto land maybe classified under one of three broad  heads. It maybe;

a)   Chattel,

b)   Fixture,

c)   Part and parcel of the land itself.

Objects in categories b and c are treated as being part of the land.

CLASSIFICATIONS OF INTEREST IN LAND

The term estate indicates an interest in land of some particular duration. Various interests in land are classified according to their duration. The doctrine of estates together with the fact that land is permanent as opposed to chattels is what makes the law relating to land to be complex. The idea that one does not own the thing itself but rather has an interest in it is what underlines the basis of land holding that is the estate.

An estate is therefore an abstract entity which defines the rights that an owner of an estate has in relation to the land. The main defining aspect of the estate is its temporal nature and the length of time that the land will be enjoyed. The question that arises is why this occurred and what the point of the abstract entity is.

At common law, it can in general be said that only two distinct legal rights can exist at the same time in chattels namely possession and ownership. 

For instance, if A lends his watch to B, the ownership of the watch remains vested in A while B has possession.  In the case of land a large number of legal rights could and still can exist at the time. e.g. A could be entitled to the land for life, B to a life interest in remainder(after A’s death) and C to the fee simple remainder. At the same time, D may own a lease for 99 years subject to a sublease in favour of E for 21 years and the land may be subject to a mortgage in favour of  F, a profit in favour of G, easements such as right of way in favour of H,J and K and so on indefinitely. Before 1926, all these estates and interests would exist as legal rights some but not all can exist as legal rights today.

In the case of a chattel, ownership is absolute. It is either owned by one person or by several persons jointly or in common with each other or it is not owned at all. However there is in law, at least in theory no absolute ownership of land. The land is held in tenure and there is a presumption that it is held directly of the crown. It may be held for various estates and that is for a greater or less period of time. Under English land law, all land was owned by the crown and people held land from the crown originally in return of the performance of certain services and it is difficult to say that the tenants actually owned the land itself. They held an interest or estate in the land. Estates were divided into two categories:

a)   Freehold estate

b)   Leasehold estate.

Freehold estate

This is one whose duration cannot be known with certainty at the outset. One can know its theoretical duration but cannot know in advance when the event will occur which will cause the estate to end. Traditionally, estates were defined in terms of their duration.

A common feature of all estates of freehold was that the duration of the estate although limited, was uncertain. Nobody would say when the death would occur of a particular person and all his future heirs or of a person and all his descendants or of a person alone nor was it certain that the duration would be perpetual. The estate was always liable to determine if some event occurred. Originally at common law there were two types of freehold estates: the fee simple and the life estate. To these estates, a third one, the feetail was later added by statute. In the case of fee simple and fee tail, the word fee, denoted that,

ü  That the estate was an estate of inheritance i.e. an estate which on the death of the tenant was capable of descending to the heir.

ü  That the estate was one which might continue forever.

The words simple and tail distinguish the classes of heirs who could inherit. A fee simple descended to heirs special i.e. lineal descendants only.

A life estate on the other hand was not a fee. It was not an estate of inheritance and it could not continue forever. On the death of the tenant, an ordinary life estate determined and an estate took or but passed under special rules of occupancy. Life estate were sometimes called mere freeholds or simply freeholds as opposed to freeholds of inheritance. Each estate of freehold could exist in a number of varied forms.

Leasehold Estate

On the other hand leaseholds have for a long time been seen as estates less than freehold and in theory are seen as being inferior. In the early times due to their nature and inferiority leases were seen as personal and not real property. There could however be a lease for 300 years which may in duration be greater than a freehold estate of 99 years. The distinguishing character of leases unlike freehold estate is that their maximum duration is fixed in time. Despite the historical origin of leases of being outside the law of real property it, has been considered for a long period of time that it is an important form of land holding and now forms part of the law of real property

NATURE AND EXTENTS OF FREEHOLDS

Fee simple will terminate once the original tenant dies without leaving any descendants or any collateral such as cousin, even before his death, the land conveyed to another tenant who was still alive.

In 1306, it was stated that where a tenant in fee simple alienated the land, the fee simple will continue as long as there were heirs of the new tenant and so on irrespective of any failures of the original tenant heirs

From that time onwards, the fee simple became virtually perpetual. It would terminate only if the tenant for the time being died leaving no heir and it would revert to the the crown.

The fee simple is the most substantial estate which can exist in land. Even though strictly speaking it is held in tenure and therefore fell short of absolute ownership, in practice it is absolute ownership. A tenant in fee simple enjoys all the advantages of absolute ownership except the form.

His powers of enjoying, using and abusing his land are limited in many ways by a statute and by the rights of his neighbors but they are not limited by any inherent narrowness in the concept of property in land. One of the main rights of an owner of a fee simple is the right of alienation; and his right to everything in, on or over in the land.

TYPES OF FEE SIMPLE

Fee simple maybe absolute or modified

Modified fee simple also known as a modified fee is any fee simple except a fee simple absolute.

3 main types:

Fee simple absolute – this is the most common type of fee simple and it is an estate that continues indefinitely.(the word absolute means perpetual)

Determinable fee – this is a fee simple that will automatically determine on the occurrence of some specified event which may never occur. If the event is bound to happen at some time, then the estate created is not a determinable fee.

Example 1: a grant to A until the death of B gives ‘A’ a life estate to ‘outré’ B, but a grant to X as long as the church of St. Paul shall stand creates a determinable fee simple. If the occurrence of the determining event becomes impossible, the possibility of riveter is destroyed and the fee simple becomes absolute

Example 2: if land is given to A until he marries and A dies a bachelor.

Fee simple upon condition – this is a fee simple that has some condition attached to it by which the estate given by the guarantee may be cut short. A grant of land to X in fee simple on condition that he does not marry Y, for example, we’ll give X a fee simple which is liable to forfeiture if the acts that is forbidden i.e. marriage to Y takes place. This type of condition is also referred as a condition subsequent in order to distinguish it from condition precedent relating to the beginning of an estate.

N/B-Difference between a determinable fee and fee simple by condition subsequent is not always easy. The essential distinction is that the determining event in a determinable fee itself sets the limit for the estate that is first granted. A condition subsequent on the other hand is an independent clause added to a limitation of a complete fee simple absolute which operates to defeat it.

MODIFIED FEE SIMPLE

The owner of a modified fee has the same rights over land as the owner of a fee simple absolute. A modified fee may be enlarged to become a fee simple absolute.

FEE TAIL

There are very few fee tails in existence. The hallmark of a fee tail was a limitation to a person and the heirs of his body restricting the inheritance of his lineal descendants as opposed to the collateral limitations who could inherit the fee simple if there were no issues. A fee tail unlike a fee simple was followed by a reversal or a remainder. On the failure of the donee’s lineal issues, the land will still remain with the original owner. A tenant in …had all the original rights enjoyment of a fee simple owner. All   fee tails exist as equitable interest behind trust. This means that the legal estate must be vested in some trustees or trustee

LIFE ESTATE

There existed two types of life estate. The ordinary life estate for the life of the tenant and the estate pur autré vie[1].

The estate of the life of the tenant arose either by either express limitation, for instance, to A for life or by operation of the law.

Estate pur autré vie is an estate that was granted for the life of someone other than the tenant. The person whose life measured the duration of the estate was called ‘Cesteui Quevie’.

An estate pur outré vie could arise by owner of estate as signing it to another person or by an express grant, for instance, to A for the life of X.

Both types of life estates were estates of freehold but none of them was a freehold of inheritance since neither could descend to the heirs.

LEASE HOLDS

Initially the three estates of freehold were the only estates recognized by law. The only other lawful right of possession of property was the tenancy at will. In this case (tenancy at will) the tenant was subject of the mercy of the landlord and could be ejected anytime from the land.

Leases were initially not regarded as property but as personal contracts binding the parties. When they were fully protected by the law they became estates although it was too late to classify them with other estates.

There are several categories of leases:

Fixed term of certain durations. – in this case a tenant can hold ;and for a fixed term of a certain duration, say for instance a lease for 99 years. 

Fixed term with duration capable of being rendered certain – a lease of land to A from year to year with no other provision as to its duration will continue indefinitely unless either of the parties takes some steps to determine it. At any given moment, the tenant’s estate has a fixed term set to it although it may later be extended if no notice is given. And this also applies to quarterly, monthly weekly or other periodical tenancies.

Tenancies at will and at sufferance – a tenancy at will is a tenancy that may continue indefinitely or may be determined by either party at any time. A tenancy at sufferance arises where the tenancy has terminated but the tenant holds over i.e. remains in possession without the landlord’s accent or decent.

Such a tenancy differs from a trespass in that entry to the premises was lawful and landlord must re-enter before being able to sue trespass.

Remainders and reversions

An estate in land may exist either in the form of possession, in remainder or reversion. An estate in possession gives immediate right to possession and enjoyment of the land. Estates in remainder or reversion in the other hand are future interests (Some other person is always entitled in possession). Remainder denotes a future gift to some person not previously entitled in the land. Reversion on the other hand signifies the residue of an owner’s interest after he has granted away some lesser estate in possession to some other person.

The absolute estate

Under English property law, where a person is registered as a proprietor of a freehold estate, the registration of that person as the first proprietor vests in the person so registered an estate in fee simple, in possession in the land together with all rights, privileges and appurtenances belonging or appurtenant thereto subject to the following rights and interests:

ü  Encumbrances and other entries if any appearing on the register.

ü  Unless the contrary is expressed in the register subject to such overriding interest if any that affect the land.

ü  Where the first proprietor is not entitled to the land, for his own benefit to the registered land subject as between himself and the person entitled to minor interests to any minor interests of such person of whom he has notice but free form all other estates and interest whatsoever including those of her majesty.

This principle works two-fold.

ü  It stipulates what the statute gives to a proprietor of absolute interest in land.

ü  Secondly, the rights which it takes.

Under Section 24 of the Land Registration Act of 2012:

      i.        The registration of a person as the proprietor of land vests in that person, the absolute ownership of that land together with all rights and privileges belonging or that are appetent thereto.

     ii.        similarly the registration of a person, the proprietor of a lease vests in that person (the lease hold) interest described in the lease together with all  implied and expressed rights and privileges belonging or appetent thereto and subject to all implied and expressed agreements, liabilities or incidents of the lease.

These provisions reflect the English position of a holder of absolute interest in land.

Under Section 25 of the land registration act, the rights of a proprietor whether acquired on first registration or subsequently for valuable consideration or by an order of court cannot be defeated except as provided in the act and shall be held by the proprietor together with all privileges and appurtenances belonging thereto free form all other interest and claims whatsoever.

 They are however subject to the following:

      i.        To the leases, charges and other encumbrances and to the conditions and restrictions if any shown in the register.

     ii.        To such liabilities, rights and interests as affect the same and are declared by section 28[2] not to require the noting on the register unless the contrary is expressed in the register.

Under s. 25(2), nothing in that section shall be taken to relieve a proprietor from any duty or obligation to which the person is subject as trustee.

Under s. 26(1) of the land registration act, the certificate of title issued by registrar upon registration of a proprietor of land or to a purchaser of land upon a transfer of transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute  and indefeasible owner subject to the encumbrances, easements, restrictions or conditions contained or endorsed in the certificate and the title of that proprietor shall not be subject to challenge except:

ü  On the grounds of fraud or misrepresentation to which the person is proved to be a party.

ü  Where the certificate of title has been acquired illegally and procedurally or through a corrupt scheme.

Under s. 28 of the LRA, it provide for what constitutes the overriding interest. Under the same section, unless the contrary is expressed in the register, all registered land shall be subject to the following overriding interest as may from time to time subsist and affect the same without there being noted on the register.

The following are the overriding interests:

      i.        Spousal right over matrimonial property.

     ii.        Trusts including customary rights

    iii.        Rights of way, rights of water and profits subsisting at the time of registration under the act.

   iv.        Natural rights of lights, air, water and support.

    v.        Rights of compulsory acquisition, resumption, entry, such a user conferred by other written law.

   vi.        Leases or agreement for leases for a term not exceeding two years. Periodic tenancies and indeterminate tenancies

  vii.        Charges of unpaid debts and other funds which without reference and registration under the act are expressly declared by any written law to be a charge upon the land.

 viii.        Rights acquired or in the process of being acquired by virtue of any written law relating to the limitation of action or prescriptions.

    ix.        Electric supply lights, telephone and telegraph lines and poles, pipelines, aqueducts, canals, weirs, dams erected constructed or lay in pursuance or by virtue of any power conferred by any written law.

     x.        Any other rights provided under any written law.

Under s. 29 of the LRA, every proprietor at the time of acquiring any land, lease or charge shall be deemed to have had notice of every entry register relating to the land, lease or charge existing and the type of acquisition.

There have been various judicial interpretations in the rights of an absolute proprietor and the rights that they have over land

In the case of Obiero vs. Opiyo and Another, the plaintiff was a wife to Opiyo who died around 1938/39 and the defendants were the sons of a co-wife. She was the registered proprietor of a parcel of land. She claimed damages for trespass against the defendants and an injunction to restrain them from continuing or repeating acts of trespass. The defendants in their defense stated that they were in possession of the land in dispute and that they had cultivated it over a long period of time. They claimed that they were the owners of the land in dispute under customary law and denied the plaintiff’s title to the land. This dispute had been heard and determined in the plaintiff’s favor by a land adjudication committee and the defendant did not appeal against the decision.

Benet J as he then was not satisfied on the evidence that the defendants ever had any rights to the land under customary law. He held that rights under customary law are not overriding interests under s. 30 of the Registered Land Act. (He said that the rights of a registered proprietor were to be served upon any person….) the defendants were evicted from the land although they had been in possession and actually occupation, and cultivated the land.

In a case of Esiroyo vs. Esiroyo & Another, the plaintiff was the registered proprietor of the land under Registered Land Act. He wanted letters of eviction against the defendants of his land. He also claimed for damages for trespass on the land, and an injunction to restrain the defendants, their wives and children or servants from continuing or repeating any acts of trespass. The defendants were natural sons of the plaintiff and claimed that they were entitled to certain portions of land and to occupy and cultivate those portions because it is land which came to their father from his father and grandfather and so forth. They claimed that their rights were well founded under the luhya customary law. The courts held that rights under customary law are not overriding interests under s. 30 of the Registered Land Act. The court seems to have adopted the position that the plaintiff was no longer bound by customary law as the provisions of the act had taken away the matter in dispute out of the purview of customary law. This means that customary law rights are extinguished upon registration of land under the Registered Land Act.

The court of appeal in a later case of Elizabeth Wangare Wanjohi & 2 other vs. official receiver and interim (continental credit finance ltd) endorsed and affirmed the statement of law as stated in the case of Obiero and the case of Esiroyo with regards to rights under customary law not being overriding interest under s. 30 of the LRA and also with regard to the extinguishing of customary law by registration of land under the provisions of the RLA.

OVERVIEW: There was default in repayment of loan; applicants did not have money to pay the loan; they paid for a perpetual injunction restraining the liquidator from …)

The court of appeal went on to examine the legal concept of overriding interest upon which the applicants were relying and s. 28 and 30(g) of the RLA were considered. The court held that “customary rights as to the occupancy of the suit land as the applicants had were not overriding interests within s. 30 (g) of the RLA and that rights under customary law are extinguished upon registration of land under the RLA.

In another case of Allan Kiama vs. Ndia Mathunya and 9 others, one Karuma Kiragu had transferred land to the appellant Allan Kiama, who subsequently filed suit to eject respondents on grounds that they were trespassers. The respondents counterclaimed the case on the ground that the land belonged to their clan and therefore prayed for a declaration that the appellant held the land in trust for the respondents and alternatively the respondents prayed for a declaration that the appellant held the land subject to the rights of possession, occupation and cultivation of the respondent. The court of appeal declined to issue a declaration of land in trust which had been granted in the high court and this was despite the fact that there was evidence that during land adjudication and registration, the suit land was registered in the name of Karuma Kiragu so that he could later transfer the land to the rightful owners after the rightful owners had been released from detention. Some of their relatives were on the land during land adjudication and registration. Karuma Kiragu who had been registered as absolute owner, on first registration without the words “as a trustee” having been entered on the land registrar had sequent transferred the land to the appellant. In refusing a declaration of trust, the Court of Appeal held that it had not been proved by expert evidence that Kikuyu Customary law contains the concept of a resulting trust within the jurisprudence as demanded by s. 48 and 51 of the Evidence Act. The court of appeal therefore went ahead to order rectification of the land register in favor of the respondents on the basis of the overriding interest under s. 30 (g) of the RLA.

In the case of Gathiba vs.  Gathiba , the plaintiff brought a suit against a defendant who was his younger brother seeking him an order to restrain him from trespass or carrying any acts in relation to a piece of land of which the plaintiff was registered as an owner under the RLA. The plaintiff stated that he had solely paid for the purchase price of the land and it belonged to him absolutely and free from any claim by any family member. The defendants opposed the suit claiming that the land belonged to the family as it had been purchased by their late father. During the period of land adjudication and registration which came after their father’s death their clan decided that the land should be registered in the name of the plaintiff to hold it on his own behalf and on behalf of the defendants. The defendant was not registered as a joint owner of the land ostensive because Kikuyu customary law did not permit unmarried men to own land. The court held as follows:

a)   Kikuyu customary law contained consent of trust or a resulting trust within its jurisprudence as demanded by s. 48 and 51 of the Evidence Act.

b)   A first registration by virtue of s. 143(1) of the RLA should not and cannot be rectified as s. 143(1) preventing rectification is mandatory and absolute.

c)   Rights under customary law are not overriding interests under s. 30 of the RLA and customary law rights in land are extinguished upon registration of the land under RLA.

The RLA creates a ladder of protected interests that can be arranged as follows;

a)   Absolute proprietorship or absolute ownership under s. 27 (a)

b)   Proprietors or owners registered in fiduciary capacities (trustees) and are therefore not absolute proprietor or absolute owners; they are in the proviso of s. 28.

c)   Leaseholds identified in s. 27(b) of the RLA and this must be registered

d)   Interests described as charges and other encumbrances and conditions as well as restrictions shown in the register. These are in s. 28(a) and must be shown or entered in the register.

e)   The overriding interest as spelled out in s. 28(b) as read with s. 30 of the RLA, they are the only interest which are not registered  or entered in the relevant land registers if any have to be noted in the register a land registrar must an entry.

A second appeal was then filed, the court held among other things:

ü  That those rights under customary law are subject to rights under written law and are excluded under the clear language of s. 27 and 28 of the RLA. Customary law rights in land are distinguished upon registration of that land under the act and rights under customary law are not overriding interest under s. 30 of the act.

The court further stated as follows:

However since the same registration recognizes trust in general terms without specifically excluding trust from customary law and since African customary law in Kenya generally have the concept or notion of a trust inherent in them where a person holding a piece of land in a fiduciary capacity under any of the customary laws has the piece of land registered in his name under the act with the relevant instrument of acquisition either  describing him or not describing him by the fiduciary capacity that registration signifies recognition by the act of the consequent trust with the legal effect of transforming the trust from customary law to the provision of the act because according to the proviso of s. 28, such registration does not relieve a proprietor from any duty or obligation to which is subject as trustee.

A trust arose from the possession and occupation of the land by the respondent which had the protection of s. 28 and 30(g) of the act.

OTHER FORMS OF PROPRIETORSHIP.

1.       Joint tenancy

A gift of land to two or more persons in joint tenancy is such a gift as imparts to them with respect to all other persons than themselves the properties of one single owner. Joint tenants have separate rights as between themselves but against everyone else they’re in a position of a single owner.

The nature of joint tenancy have two features; the right of survivorship and the four unities.

a.        THE RIGHTS OF SUVIVORSHIP.

This is the distinguishing feature of a joint tenancy. On the death of one joint tenant, interest in the land passes to the other joint tenant by right of survivorship (jus accresendi) [3]

This process continues until there’s one survivor who then owns the land as a sole owner.

A joint tenancy cannot pass under the will of intestacy of a joint tenant. In each case, the right of survivorship takes residence. It is therefore said that each joint tenant holds nothing by himself and yet holds the whole together with the other. Whether he takes everything or nothing depends upon whether or not he is the last joint tenant to die.

At common law, if there would be no right of survivorship, there could be no joint tenancy. A corporation could not therefore be a joint tenant because it could never die. A joint tenant has full powers of alienation inter vivos[4] although if for example he conveys his interest, he destroys the joint tenancy by severance/sufferance and turns his interest into a tenancy in common. He must however act in his lifetime for a joint tenancy cannot be severed by will.

b.        Four unities must be present.

These four tenancies are the:

      i.        unities of possession

     ii.        Interest

    iii.        title

   iv.        time

Unity of possession

This is a common feature of all forms of co-ownership. At common law each co-owner is as much entitled to possession of any part of the land as others. He cannot point to any part of the land as his own to the exclusion of others. If this is possible then it is separate ownership and not co-ownership.

Unity of interest

The interest of each joint tenant is the same to the extent, nature and duration because in law, they’re whole one estate. Unity of interest only applies to the estate which is held jointly but if that requirement is satisfied, it does not then matter if one joint tenant has a further and separate interest in the same property.

Example: for instance, a conveyance to A and B as joint tenants for life, remainder to B in fee simple would make A and B joint tenants for life despite the remainder to B.

Unity of title

Each joint tenant must claim his title to the land under the same act or document.

Unity of time

The interest of each tenant must vest at the same time.

TENANCY IN COMMON

Unlike joint tenancy, tenants in common hold land in undivided shares. Each tenant in common has a distinct share in property which has not yet been divided among the co-tenants. Tenants in common therefore have separate interests. The only thing which brings them together into co-ownership is that they both have shares in a single property which has not yet been divided among them. None of them can say for certain the particular parcel of land they own. The size of each tenant’s share is fixed once and for all and is not affected by the death of one of his co-owners. Upon a co-owners death, his interest passes under his will or intestacy for his undivided share is his to dispose as he wishes.

The only unity that is essential is the unity of possession although all 4 unities of a joint tenancy maybe present. For instance, the unity of interest may be absent and the tenants may hold unequal interests so that one tenant maybe entitled to say, one 1/5 share and the other 4/5 share or one may be entitled for life and another in fee simple.

Section 91(1) of the land registration act defines a co-tenancy to mean the ownership of land by two or more persons in undivided shares and includes joint tenancy and tenancy in common.

Under section 91(2) of the same act, if two or more persons not forming an association of persons under the act or any other way which specifies the nature and content of the rights of the persons forming the association own land together under a right specified by that section, they may be either joint tenants or tenants in common.

Under section 91(3) an instrument made in favor of two or 3 persons and the registration giving effect shall show:

ü  Whether the person are joint person or tenants in common

ü  The share of each tenant if they’re tenants in common

Under s. 91(4) where land is occupied jointly, no tenant is entitled to any separate share on the land. Dispositions may only be made by all the joint tenants on the death of a joint tenant that tenant’s interest shall vest in the surviving tenants or tenants jointly.

Each joint tenant may transfer their interest inter vivos to all the other tenants but to no other person and any attempt to transfer an interest to any other person shall be void.

WHY SHALL IT BE VOID?

Under s. 91(5) if any land, lease or charge is owned in common, each tenant shall be entitled to an undivided share in the whole and on the death of a tenant, the deceased’s share shall be treated as part of their estate.

Under s. 91(6), no tenant in common shall deal with their undivided share in favor of any person other than another tenant in common except with the concept in writing of the remaining tenants but such consent shall not be unreasonably withheld.

Under s. 91(7) joint tenants who are not trustees may execute an instrument in the prescribed form signifying that they agree to severe the joining ownership and the severance shall be complete by registration in the prescribed register of the joint tenants and tenants in common.

LICENCEES

Doctrine of servitudes

These rights were previously dealt with under the RLA and are currently covered under the LRA and the Land Act.

The principles of common law and equity apply because of s.3 of the judicature act. These rights bare a lot of misleading similarities. It is therefore important to note the differences in their characteristics Vis a Vis themselves.

(i)                  Easements

An easement is a right amounting to an interest in land allowing one owner of a given piece of land to use or restrict the use of other piece of land owned by another person in some specific way but excludes the former owner taking away the soil or produce or any other commodity independently capable of ownership as is the case concerning the right of profit.

The owner of the other land accepts the holder of the easements to enjoy the rights by allowing such enjoyment by omitting to do some defying acts or by allowing some defined acts to be effected in his land.

An easement can be either positive or negative. Positive easement includes the right to hang clothes on a line passing over another’s land, a right of way, a right to place sign boards and advertisements on another’s land, right to run telephone line over neighboring land and a right to use lavatory on another’s land. Negative easements include easements of support of lights and of air.

 For there to be an easement, the following things must exist:

      i.        There must be two pieces of land and two different owners.

     ii.        The guarantor and guarantee must have legal right to create an easement.

    iii.        The right must be specific

   iv.        The right must be capable of creating a grant

The two pieces of land are known as the dominant tenement and the serviette tenement. The former is a piece of land to which the benefit of the easements accrues and the latter is the piece of land which bears the burden.

Where the pieces of land are not adjoining, they must not be remotely distant from each other.

Case: Pwilbarch Colliery Co. ltd Vs. Woodman where the court held that a right to spread coal dust over a piece of land was held not to amount to an easement without the existence of a serviette tenement.

An easement can be acquired by statute; by deed; or prescription.

Since an easement is a right, it can be acquired by agreement of parties. Such a grant will need to be registered. There can also be an implied easement.

PROFITS

A profit is an interest in land and passes as any other interest in land. It can be defined as the right to another’s land and take out something from the land that is capable of ownership. If the substance taken cannot be owned, then a profit will not arise. The substance of profit can either be enjoyed alone or can be enjoyed by a person in common with others including the person in or upon whose land the substance of profit is situate. Profits include the right to go to another’s land and cut trees say for wood, fetch firewood, and fetch clay or shale.

Profit may be created by an instrument. The instrument must clearly state the nature of the instrument, the period for which it is to be enjoyed and whether it is to be enjoyed in gross or as a pertinent to other land, or a lease and whether it is to be enjoyed by guarantee exclusively or in common with the guarantors. The grant in a profit shall be completed by its registration as an encumbrance in the register of land or lease which it affects and where it is a pertinent to other land or a lease by its registration in the property section or land or lease to which it is a pertinent. A profit granted by proprietor of a lease shall be capable of subsisting only during subsistence of a lease.

Restrictive covenants/agreements

It is possible to stipulate covenants and conditions in a lease, an instrument may contain an agreement by one proprietor of a building on the user or enjoyment on his land for the benefit of the proprietor of another land. Such instrument maybe registered as an encumbrance to the title.

Unless it is noted in the register, a restrictive agreement or covenant is not binding on the proprietor of land or lease burdened by it or anybody acquiring the land or lease. It is not only the proprietor themselves but also their respective successors in title who shall be entitled to the benefit and subject to the burden of it respectively unless the instruments otherwise provides.

CHARGES & MORTGAGES

Charges and mortgages are basically lending transactions. They are basically designed to provide security for money advanced by creditors.

 In the case of samtley vs. wilde, Lindley J defined a mortgage as a disposition of some interest in land or other property as a security for the payment of a debt on the discharge of some other obligation for which it is given. In simple terms a mortgage is a conveyance of land as a security for the payment a debt or the discharge of some other obligation.

Stratham defines a mortgage as follows; “a mortgage is a transaction in which a borrower transfer to a lender ownership of an interest in land, the condition of the transfer being that the ownership or interest is vested in the lender as security for the loan. The borrower is called the mortgagor and the lender is called the mortgagee, the loan is called the mortgage debts and the land, the mortgage property.

Under the ITPA, a mortgage is defined as the transfer of an interest in specific immovable property for purposes of securing interest in payment of money advanced or to be advanced by way of loan an existing or future debt on the performance of an engagement which may give rise to a pecuniary liability.

A charge on the other hand is defined under s. 3 of the RLA as an interest in land securing the payment of money or monies worth or the fulfillment of any condition (and includes sub-charge and the instruments creating the charge). This is the same definition adopted in s.2 of the land act. Under the land act, a charge includes:

ü  Informal charge

ü  Customary charge

It is important to differentiate what constitutes a mortgage and charge,

v  A mortgage is peculiar to land registered under Government Lands Act & Land Titles Act;

v  A charge is peculiar to land registered under Registered Land Act & Registered Titles Act

ü  A mortgage transfers an interest in specific immovable property for the purposes of securing the payment of money, advanced, or to be advanced by way of a loan; a charge on the other hand does not transfer any interest in the land but designates the land as security for the debts. A mortgage therefore conditionally assigns/conveys interest in land to secure the payment of a debt. The assignment or conveyance is conditional on the default by the borrower in that in the event that the borrower defaults, the mortgagee’s interest in the land becomes absolute. Where the borrower or mortgagor does not default, the land reverts to the mortgagor.

ü  A charge on the other hand only gives a rise to payment without aspiring transfers in the title unlike a mortgage. In other words whereas mortgage confers interest on the property, charge confers over the property

Under s. 78 of the land act the provision of charges have a retrospective event. The land act therefore applies to charges that were created before the act came into force. Reference to charged land has the meaning of charged land, charged lease and a second or subsequent charge.

The land act at s.79  creates informal charges by way of a written and witnessed undertaking to charge in land or interest in land or by way of deposit to title of documents with the charge. This is a form of equitable charge.

Under Registered Titles Act, equitable charge is created by deposit of documents of title to land under the act evidenced by an instrument in writing. Memorandum of deposit of title is to be registered under equitable mortgages act. An equitable mortgage or charge is created when the borrower deposits with the lender the documents of title with intent to create security thereon.

Under the RLA it was controversial as to whether an equitable charge may be created under the act. It was argued on the one hand  that RLA does not provide for equitable charges as the title documents is not itself a title per se and further that the RLA provides for how to create a security. In the case of K.C.F.C vs. Ngeny the court of appeal held that s.163 of the RLA imports the common law principle of equity including equitable charges. The express provision recognizing equitable charges under the land act puts this matter to rest.

Under section79 (3) of the RLA a charge of a matrimonial home shall be valid only if any document or form used in applying for such a charge or used to grant the charge is executed by the chargor or any spouse of the chargor leaving in that matrimonial home or there is evidence from the document that it has been accented to by all such persons.

Issues:

i.                     Who qualifies as a spouse?

ii.                    What is a matrimonial home?

Under the act, matrimonial home refers to any property owned or leased by one or both spouses and occupied by the spouses as their family home.

Under s. 79(5), a normal charge shall take effect only when it is registered in a prescribed register and a charge shall not be entitled to exercise any of the remedies under that charge unless it is registered.

What are the ingredients of a charge?

Every charge instrument must contain the following:

      i.        Terms and condition of sale.

     ii.        An explanation of the consequences of default

    iii.        The reliefs of the chargor including the right of sale

Under s. 81(1) of the act, charges shall run according to the order in which they’re registered. Informal charges are also ranked according to the order in which they are made but a registered informal charge shall have priority over unregistered informal charge.

Subject to the provisions of the act, a charge may make provisions to the charge to give further credit to the Chargor to a current or continuing account. This is what is called tacking.

Variation of interest rates

Under s. 84(1) of the act, where it is contractually agreed that the rate of interest is variable, the rate of interest payable under the charge shall not be increased or reduced without a written notice served on the chargor by the charge.

The chargee must give the chargor at least 30days notice of the reduction or increment. His notice must state clearly and in a manner that can be clearly understood the new rate of interest to be paid.

Covenants, conditions and powers implied in charges

Under s. 88(1) of the land act, in every charge there shall be covenants binding the chargor to:

      i.        Pay the principle money on the day appointed in the charge agreement.

     ii.        To pay all rates, charges, taxes, rent and other outgoings that are payable in respect to the charged land.

    iii.        To repair and keep in repair all buildings and improvements upon the charged land and to permit the chargee and Chargee’s agent to inspect the state and condition of the building.

   iv.        To ensure by insurance or any other means that maybe described or which are appropriate.

    v.        In the case of agricultural land, to use the land in a sustainable manner.

   vi.        Not to lease or sub-lease the charged land or part of it for a period longer than one year without the consent of the chargee.

  vii.        Not to transfer, assign or lease the land or part of it without the consent of the chargee.

 viii.        In the case of a charge of a lease, during the continuance of the charge to pay, perform and observe the rent, covenants and conditions contained in or implied by and in the lease.

    ix.        If the charge is a second or subsequent charge that the chargor will pay interest from time to time accruing on the prior charge when it becomes due and will at the proper time pay the principle sum.

     x.        If the chargor fails to comply with any of the covenants implied, the chargee may spend any money which is reasonable to remedy the breach and they add the money to the principle sum.

Remedies of a chargee

The remedies that obtain to a chargee under the RLA included the realization of security by way of statutory power of sell, appointment of a receiver and institution of a suit by the chargee to recover the loan amount as a civil debt.

ü  RLA outlawed the remedies for closure and the right of possession.

ü  Exercise right of sale

ü  Institute a suit

ü  Appoint a Receiver

Under the ITPA the chargee or mortgagee would be titled to exercise statutory power of sale, appoint a receiver right to for closure and the right to take possession.

Under s.90 (1) of the Land Act, if a chargor is in default of any obligation fails to pay interest or any other periodic payment or any part therefore due under any charge or in the performance or observation of any covenant, express or implied, and continues to be in default for one month, the chargee may serve on the chargor a notice in writing to pay the money owing or to perform and observe the agreement as the case may be.

The notice is required to notify the recipient (chargor) on the following:

Nature and extent of default by the chargor

ü  If the default is about failure to perform or observe any covenant in the charge, the thing that the chargor must do or desist from doing so as to rectify the default and the time being not less than two months by the end of which the default must have been rectified

ü  If the default consists of non-payment of any money due under the charge, the amount that must be paid to rectify the default and the time being not less than 3 months by the end of which the payment in default must have been completed.

ü  The consequences that if the default is not rectified within the time specified in the notice the chargee will proceed to exercise any of the remedies referred to in the act.

ü  The right of the chargor in respect of certain remedies to apply to the court for the relief against those remedies. If the chargor does not comply within two months after the debt of service of the notice then the chargee may :

v  Sue the chargor for any money a due and owing  under the charge

v  Appoint a receiver of the income of the charged land.

v  Lease the charged land or if the charge is of a lease, sub-lease the land.

v  Enter into possession of the charged land

v  Sell the charged land.

Chargee sues for money owed if:

      i.        The chargor is personally bound to pay the money.

     ii.        If by any course other than the wrongful act of the chargor or chargee, the security is rendered insufficient and the chargee has given the chargor sufficient time to give additional security.

    iii.        If the chargee is deprived of the whole or part of the security through a wrongful act or default of the chargor

Under s. 92(1) the court may order the postponement of any proceedings brought under this section until the chargee has resolved all the remedies relating to the charged land.

A chargee may exercise a power to sell the land. Before exercising the power of sale, the chargee shall serve the charger with a notice to sell which has to be in the prescribed form and shall not proceed to complete a sale until at least 45 days have elapsed from the date of service of that notice of sale.. A copy of the notice is supposed to be served among others;

      i.        the commission if the charged land is a public land;

     ii.        the holder of the land out of which the lease has been granted if the charged land is a lease;

    iii.        spouse of the chargor who had given the consent ;

   iv.        Any leasee and sub-leasee of the charged land.

    v.        Guarantor of the money advanced under the charge

Before a chargee exercises the right to sale:

ü  A forced sale valuation has to be done.

ü  If the sale is to proceed by public auction, the chargee shall ensure that the sale is publicly advertised in such a manner and form as to bring it to the attention of interested buyers.

ü  The sale shall be made in a prescribed form and the registrar shall take it as sufficient evidencethat the sale has taken place.

Courts have intervened where a statutory notice issued is not valid.

Case St. John vs. cooperative bank of Kenya; the court held that the commission to serve a valid statutory noticeis a fundamental breach of statute and it delegates the chargor’s equity of redemption. If a statutory notice is not valid, the chargee’s statutory power of sale does not approve.

ADVERSE POSSESION

What is adverse possession?

The doctrine of adverse possession is closely related to the limitation of actions and restriction in relation to land. The basis of limitation is to shut out the assertion of a right beyond a certain prescribed period of time. Rights must be asserted within time failure to do so results into their extinction. There are different limitation period for different rights.

Tort-3yrs

Contract - 6yrs

For land, the general limitation period is 12 years. The limitations of actions act at section 7 provides that an act may not be brought by any person to recover land after the end of 12 years  from the date of which the right of action accrued to him or if it first accrued to some person through whom he claims to that person.

s. 17 of the limitation of actions act provides that subject to s.18 at the expiration of period provided by this act for a person to bring an action to recover land including a redemption action, the title of that person to the land is extinguished.

s. 37 of the act provides that the act applies to land registered under the GLA,RTA,LTA or RLA in the same manner and to the same extent as it applies to land not so registered.

Under s. 38 of the act where a person claims to have been entitled to adverse possession to land registered under any of the acts, sighted in s.37 or land comprised in a lease registered under any of those acts, he may apply in the high court for an order that he be registered as the proprietor of the land or lease in place of the person registered as proprietor of the land.

RUNNING OF TIME

There are three issues that need consideration:

      i.        When does time begin to run?

     ii.        Whether the time can be postponed & What will postpone time

    iii.        Can time start running afresh?

Time begins to run when the owner of the land has been dispossessed (driven out of possession) or has discontinued his possession (abandoned the premises) and the person claiming adverse possession has now assumed possession in place of the original owner.

The possession must be adverse i.e. inconsistent with the title of the true owner. And will therefore not cover possession by way of a license or possession with the permission of the owner. There must not only be mere possession but also possession with intention to possess the land to the exclusion of all others. (Animus Possidendi)

Fencing of land is strong evidence of adverse possession

It is not a must for the adverse possessor himself to be in occupation, it is enough if he has granted tenancy or possession; exclusive control of possession is necessary.

Possession must consist of the following:

ü  Be factual; actual factual possession

ü  Be accompanied by animus Possidendi

ü  Any form of acknowledgement to the owner will negate any intention to posses

SUCCESSIVE SQUATERS

If a squatter sells the land, he can give the purchaser a right to the land which is as good as his own; the same applies to gifts and other dispositions in land and to devolution on his intestacy.

The person taking over the squatter’s interest can add the squatter’s period of possession to his own period. This could also happen if a second squatter dispossesses a first squatter, this is so because time begins to run against the owner from the time adverse possession begun. For as long as possession continues uninterrupted, it does not matter who continues with it.

POSSESION ABANDONMENT

If a squatter abandons possession before expiring of a period of 12years and some time passes before someone else takes possession, the land during duration under which there is no possession ceases to be in adverse possession. If a second squatter takes over time starts to run afresh.

ADVERSE POSSESSION AND THE REQUIREMENT OF LAND CONSENT BY THE LAND CONTROL BOARD

There may be a case where a person enters into sale agreement for land with another and the consent of the land control board is not sought. Such a transaction becomes void and expiry after six months. The issue that arises is whether such a purchaser can acquire good title to the land by adverse possession.

s. 16 of the land control act require consent for sales, leases etc. but no consent is required for adverse possessor to acquire title.

Case of Matheri vs. kanji

The court held that a person is entitled to be registered as the proprietor of land which he has acquired by virtue of occupation even where the initial sale transaction became void for want of consent by the land control board.

In another case of Samuel nyakeregu vs. Samuel onyaru

The trial court; portion of land which the plaintiff had had possession of was ascertainable.

On appeal: the court of appeal held that for about 19 years, the respondent was in exclusive possession of the portion of land bought from the deceased openly and as of right and during all this time the respondent’s said possession was not interrupted by the registered proprietor. The court held that the respondent had acquired prescriptive right over the portion of land occupied by him and was entitled to be registered by him.

In the case of wambugu vs. njuguna

The court of appeal held that in order to acquire adverse possession, the owner of the land must have lost his right to the land by either being dispossessed from it or by discontinuing his possession of it. Occupation by virtue of employment would be an occupational license. A licensee cannot claim adverse possession.

A LICENSE

Such rights are common in bail life and include the right to lodge in a person’s house; going onto his land to play cricket; storing goods on his premises; or boarding his home

A license is a mere defense of an action in tort and does not confer an estate or an interest in land.

A license cannot therefore bind a successor in title of the licensor. There is a big line between a lease and a license.

Difference between a lease and a license

Where the requirements of a tenancy are not satisfied, the interests can be no more run a license. E.g. if A own a lodging house and sells it, B the purchaser can recover possession from the lodgers who in law are mere licensees not withstanding their agreements.

TYPES OF LICENCES

Licenses can take various forms. There are however three types;

Bare licenses – this is the simplest form of alicense. It is not supported by any contract such as a glatuitor’s permission to enter a house or to cross a field. Such a license can be either expressly or …a bare license can be revoked at any time on reasonable notice without rendering the licensor liable in damages but the licensee will not be held as a trespasser until he has had reasonable time to withdraw.

Contractual license; this is a license that is granted under some terms of some contract which restricts the licensor’s rights to revoke it. The contract is normally express although it can also be implied. Contractual licenses are subject to the same rules which govern all contract.

Licenses coupled with an interest; a right to enter another person’s land to hunt and take away a deer killed or to enter and cut down a tree and take it away involves two things:

a.        A license to enter the land

b.       The grant of an interest(aprofi aprendre) in the deer or the tree.

At common law such a license is both irrevocable and assignable but only as an adjunct  of the interest with which it is coupled. It has no independent existence merely as a license.

COMPULSORY ACQUISITION

HOW THE CONSTITUTION AND NEW LAND LAWS HAVE BEEN APPLIED

Certain governmental actions developmental in nature for instance building of roads require land. The state may therefore take property from its private owners and reallocate it to governmental preferred uses.

Compulsory acquisition also domain is the power of the state or its asides to acquire private property for public purposes subject to the payment of compensation. Whenever the government exercises its power, it forces involuntary transfer of property from private owners to itself or asides. The power of eminent domain is derived from the feudal notion that as a sovereign, the state holds the radical title to all land within its territory.

In Kenya, the power is embodied in the constitution which requires the private property can only be acquired compulsorily for public use.

NOTE article 75; 173 & 118 of the Kenyan constitution.

The COK further requires that such public use must be weighed against the hardships that may be caused to the owner. The constitution further requires that the acquisition must be accompanied with payment of adequate compensation.

The rules governing acquisition of trust land and compensation were contained in the trust land act whereas other cases of compulsory acquisition were remunerated by land acquisition act which has been repealed by land act, 2012.     

 The state has powers to regulate the use of any land or any interest in or right over any land in the interest of defense, public safety, public order, public morality, public health. The COK creates Lands commission under ART 67. The functions of the national land commission are:

ü  To manage public land on behalf of the national government

ü  To recommend a national land policy to the national government.

ü  To advise the national government on a comprehensive programme for registration of title in land throughout Kenya.

ü  Conduct research related to land and the use of natural resources and to make recommendations to appropriate authorities.

ü  To initiate investigations on its own initiative or on a complaint into present or historical land injustices and recommend appropriate redress.

ü  To monitor and have oversight responsibilities over land use planning throughout the country.

The land act provides for the procedure for compulsory acquisition of land. Under sec 107 of the Act, whenever the national or county government is satisfied that it may be necessary to acquire some particular land under sec 110 then the respective cabinet secretary or county executive committee member shall submit a request for acquisition of public land to the commission to acquire the land on its behalf. The commission is required to come up with a criteria and guidelines to be followed by the acquiring authorities. The commission may reject a request from an acquiring authority if it does not meet the requirements of subsection 2 and Art 40(3) of the COK. Provision may be made for compensation to be paid to occupants in good faith of land acquired under clause 3 who may not hold title to the land. Upon approval of a request under subsection 1, the commission shall publish a notice to that effect in the gazette and the county gazette and shall deliver a copy of the notice to the registrar and to every person who appears to the commission to be interested in the land.

Interested persons include any person whose interest appears in the registry, spouse or spouses of any such person as well as any person occupying the land and the spouse or spouses of such persons. Upon service of the notice, the registrar shall then give a notice to the register of all the land to be compulsorily acquired shall be geo-referenced and authenticated by the office or authority responsible for survey at both national and county governments. Once an entry has been made under sec 108, the commission shall then promptly pay in full just compensation for any damage resulting from the entry. Under sec(1)(f)(2) if a land has been acquired for public purpose or interest and the compulsory acquisition fails or seizes, the commission may offer the original owners or their successors in title pre-emptive rights to re-acquire the land but upon restitution to the acquiring authority, the full amount paid as compensation. The commission has powers to make rules to regulate the assessment of just compensation. Under sec 112(1), at least 30 days after the publication of the notice of intention to acquire land, the commission is required to set a date for an inquiry to hear issues of propriety and claims for compensation by persons interested in the land. The notice shall be published in the gazette or county gazette at least 15 days before the inquiry.

Kigika developers ltd-vs-Nairobi city commission

Kanini farm ltd-vs-commissioner of lands

LAND USE, ENVIRONMENT AND LAND PLANNING

Land tenure refers to the terms and condition under which rights to land and land based resources are required, held , transferred or transmitted.

Land tenure therefore denotes the quantum of property rights that a given society has decided to allow individuals or groups thereof to hold and the conditions to which the rights are enjoyed. Because land tenure determines access of land and land based resources, land tenure becomes a critical variable in the management and conservation of the environment.

The importance of tenure in resource use and conservation explains why the state retains the power to regulate private land use or entirely abrogates rights in land in the interest for environmental land conservation#

As far as natural resources are  concerned, management is central to the broad objective of conservation since the utilization of the resources depends on the way in which they are controlled. The aid of a land or resource tenure system is therefore established a control system for the utilization of the resources in question, as regimes of control, resource tenure systems are therefore institutions whereby the methods of acquiring and utilizing natural resources are regulated.

They evolve over time to mediate conflicting interests among users, natural resource management is mainly concerned with ownership; that is the right to use the resource and the right to determine the nature and the extent of use by others. It is in this context that various regimes of land or resource tenure become important

These are private, public and community or customary tenure.

These regimes defines the bundle of rights to occupy use or benefit from land and land based resources under a particular system of law and authority.

In each case, rights are linked to correspondent duties which may include environmental conservation.

Summary:

In many cases, a particular private property use generates far reaching effects for the owners of other property and the public land. This therefore necessitates some form of state regulation of the use of private property rights. The assumption therefore is that there are public rights in private property which justify state intervention in private land used decision making.

Due to the contemporary interest in the environmental quality…the function of the state have been extended to cover the conservation of natural resouces that are within its borders

Police power

This is the power of the state to regulate land use in public interest such as to secure growth per sue …and management

It is also an attribute of state sovereignty

Unlike compulsory acquisition, it does not extinguish property rights but merely regulates their use in order to vindicate public rights that are deemed to be overriding. The state does not pay compensation when exercising this power.

In kenya, this power is exercised mainly through land use regulation. The regulation of use of agricultural land and the regulation of development of land illustrates the use of police power.

Refer to agriculture act, town planning act, land planning act.

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[1] While it is similar to life estate it differs in that a person’s life interest will last for the life of another person instead of their own. Pur autré vie can occur when a contingent remainder is destroyed, in a doctrine of merger situation, where one person acquires the life estate of another and thereby destroys the remainder not already vested.

[2] (overriding interests)

[3] http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&uact=8&ved=0CCkQFjAB&url=http%3A%2F%2Fthelawdictionary.org%2Fjus-accrescendi%2F&ei=OmOFVIXUFcfyUvvfgxg&usg=AFQjCNGcZE6_ITFcJeeRQIVSbTP_aVFuaA&sig2=b_dsZlzLMOAEJNZ4Q01C7w&bvm=bv.80642063,d.d24

[4] Inter vivos (Latin, between the living) is a legal term referring to a transfer or gift made during one's lifetime, as opposed to a testamentary transfer (a gift that takes effect on death).