CONVEYANCING LAW AND PRACTICE UNDER THE RTA, GLA AND RLA

Introduction:

Conveyancing is the area of an Advocate’s business that deals with the alienation of an interest in land from one person to another by means of an appropriate instrument or document.  Conveyance is an instrument transferring an interest in land from one person to another.  Examples of conveyances are:

• Mortgage or Charge
• Transfer
• Lease

Relationship between Conveyancing and other branches of law

1. Land Law

It is right to say that Conveyancing overlaps with land law.  Land law gives us the principles that define rights and interests in land and has been referred to as “Law at Rest”.  Conveyancing on the other hand deals with procedure or the practical legal mechanisms by which those rights and interests are transferred from one person to another.  It is “Law in Motion”

2. Law of Contract

Conveyancing law and the law of contract:  interests in land give rise to contractual obligations e.g. a lease, mortgage or charge. 

3. Law of Equity

The law of equity is also relevant to Conveyancing law and practice in so far as equitable rights and remedies are concerned.  The remedies include specific performance, injunctions, rectification and rescission.  If one has made an error in an instrument and that instrument has been registered, in order to rectify the error, rectification is needed to remedy the error. It becomes necessary to have the instrument of rectification. 

Specific performance applies where there is a seller who has entered in agreement with a person to sell land to that one person and then goes and signs another agreement with another purchaser for more money.  If the first purchaser discovers, he can go to court to seek an order for specific performance, asking the court to compel the seller to transfer the land to the first purchaser under the agreement for sale.

4. Succession Law

Some understanding of the law of succession is also necessary in dealing with transactions involving personal representatives.  The law operates to make it possible to transfer land (transmission) to the beneficiaries.  Conveyancing specifies the exact documents that we need to draft in order to vest the interests of the deceased to the beneficiaries.

5. Company Law

Knowledge of company law is equally important in dealing with companies involved in Conveyance transactions.

Scope Of Conveyancing:

The scope of Conveyancing covers the various procedures for certain land transactions.  It deals with practical issues such as how one negotiates and concludes a lease, mortgage, charge, transfer or other transaction and how the relationship between the parties to the transaction is determined.  Conveyancing therefore deals with the various stages of a transaction.  These include:

The scope of Conveyancing then is: -

• Preliminaries
• Investigation of title e.g. searches and examination of documents of title
• Drafting – Documentation which is the legal framing of documents.  It is the art of legal drafting.
• Contractual stage – this stage involves negotiation of terms
• Completion stage involving also registration- this is the stage where documentation is complete and what remains is to take the documents for registration.  If it is a transfer for example the seller’s advocate should now give all the documents signed to enable the buyer’s advocates to go and register the documents, the buyer’s advocate should now pay the buyer’s purchase price.
• The construction or interpretation of documents
• Conveyancing may also involve litigation

Execution, attestation, stamping and registration of documents

Conveyancing also involves the construction or interpretation of documents.  For example in a lease keeping the premises in good state of repair may mean painting the house, replace locks and so on.  This is part of the covenant to repair. It is about construing the covenant to repair.

Conveyancing may also involve litigation, e.g. where a transaction fails and parties resort to the court process for determination and enforcement of their rights.

Registration Systems

These are forms of documentation. In Kenya we have five land registration systems:

1.                  Registration of Documents Act 1901, RDA (Cap 285) 1^st Document

2.                  Land Titles Act 1908, LTA (Cap 282)

3.                  Government Lands Act 1915, GLA (Cap 280)

4.                  Registration of Titles Act, 1920, RTA (Cap 281)

5.                  Registered Land Act 1963, RLA (Cap 300)(repealed by the Land Act 2012) and the Sectional Properties Act No 21 of 1987 which is applicable under the RLA.

The form of documentation is governed or determined by the statute under which a particular piece of land is registered.

Registration of Deeds and Registration Of Titles

The land registration systems are of two types.

1.                  THE REGISTRATION OF DOCUMENTS OR DEEDS

The RDA, LTA and GLA fall under this type. The scrutiny is there but not as thorough as when one is scrutinizing a title.  The State is just acknowledging that a conveyance was registered but beyond that they are not vouching for the validity of that transaction at all.  It is just a record. The registration of deed system only serves as evidence that the transaction took place. One here has to trace the good root of title as there are no guarantees; it is up to one to establish the valid title of the person purporting to transfer title.

2.                  THE REGISTRATION OF TITLES      

The RTA and RLA fall under this type The scrutiny under a Title is thorough and the state guarantees a title. That it is a valid document and that one can rely on it.  The RLA register is clear that what you see is what you get and one should not even worry about who had the title before unlike in the registration of deeds where one has to worry about who owned the deed before.

The RDA 1901 was the simplest and first of all the documents dealing with land in Kenya. Section 4 talks of the compulsory registration of all those documents conferring or purporting to confer, declare, limit or extinguish any right, title or interest whether vested or contingent, in or above immovable property and Section 5 about its being optional. It provides that any other document may be registered at the option of the person holding the same but the registrar require such a document to be registered for the reason to be stated by him in writing e.g. where the document has blank erasures, alterations which have not been attested. The documents that are registered at the option of the person holding them include building plans, wills, powers of attorney and deed polls.

The Land Titles Act covers only covers property at the Coast only the 10 mile coastal strip. Given under an agreement of the Sultan of Zanzibar and the Sultan of Oman, it was available for alienation by the British and was owned by some families who had it freehold or had freehold interests.  Since the system of registration was rudimentary, even the way boundaries were demarcated was rudimentary so the demarcation was not systematised.

Government Lands Act, 1915 – dealt with all the land in the hinterland.  The Crown Lands Ordinance was replaced by the GLA and any titles registered under the RDA 1901 had to be registered afresh under the GLA.  The GLA introduced a more refined system of the register where there were deed plans in the registry.

Methods of Registration under LTA and GLA

The methods of registering is the same.  Even the way the documents are drafted under these two regimes are the same.  Conveyancing is by the way of a deed, signed, sealed and delivered.

Registration of Titles Act [RTA]–

The form of documentation under the RTA follows the statutory forms.  Section 33 RTA prohibits the Registrar of Titles from registering under the Act any document or instrument which is not in statutory form.  Many advocates have borrowed some of the language and phraseology from the GLA and LTA for example “… this instrument is made on the …. Between Susan hereinafter referred to as the landlord on the one part and George hereinafter referred to as the tenant on the other part.”  This is English phraseology that is common in both the GLA and LTA

Registered Lands Act, cap 300 Laws of Kenya

It is different from all the other Acts, form of documentation is statutory, enacted in 1963 and it is intended that eventually or land will come under this regime.  However for purposes of practicality we may never get all the land registered under the RLA.  This Act was intended to make it possible for any property owner under this Act to be able to transact without having to rely overly on an advocate.  Section 108 (1) is to the effect that statutory forms must be used to register any transaction under this Act. It provides that every disposition of land , a lease, or a charge shall be effected by an instrument in the prescribed form or in such other form as the registrar may in nay particular case approve, and every person shall use a printed form issued by the registrar unless the registrar otherwise permits. Therefore the law requires that where advocates want to depart from the statutory forms, they must obtain consent from the Chief Land Registrar to use their own format.  The Chief Land Registrar may issue an approval in the form of a letter if he is satisfied that the form meets the standards.  The Chief quotes a reference number which will always be required to be shown on the format to the effect that the chief registrar has approved the format under the quoted number e.g. CLR 3 VOL XXIV.

The instruments must contain a true statement of the amount or value of the purchase price or loan or other consideration if any and an acknowledgement of the receipt of the consideration.

Procedural and Substantive Law governing various registration systems

LTA – the procedural is found in the Act itself but the substantive law is found in the ITPA and this also applies to the GLA.  For example, if one wants to know the remedies of a lender under the GLA, they will not be found in the GLA but under Section 69 of the ITPA.  The provisions containing substantive rights are found in the ITPA.

RTA – the procedural law is contained in the RTA but where there has been a conversion, the GLA still applies especially in relation to matters that occurred before the property was transferred to the RTA regime.  The substantive law will still be found in the ITPA.  Where the RTA and ITPA are silent on a given matter related to the land, the common law will apply.

Registered Land Act – The Act itself contains both the procedural and substantive law.

 Section 163 states that:-

 “subject to the provisions of the RLA and save as may be provided by any written law for the time being in force, the common law of England as modified by the doctrines of equity shall extend and apply to Kenya in relation to land, leases and charges registered under the Act and interests therein but without prejudice to the rights, liabilities and remedies of the parties under any instrument subsisting immediately before such application.” 

Section 164 provides that the ITPA 1882 ceases to apply upon first registration under the RLA except in relation to any dealing entered into before the date of first registration.  This is a self-contained code.  You don’t need to consult any other regime. 

Section 53 rla gives the rights and duties of landlord.  Agreements implied in a lease on the part of the lessor.

a)      To ensure quite possession and enjoyment during the period of the lease without any lawful interruption from or by the lessor or any person rightfully claiming through him so long as the lessee pays the rent and observes and performs the agreements and conditions contained or implied in the lease and on his part to be observed and performed.

b)      It is an implied duty on the lessor not to use or permit to be used any adjoining or neighbouring land of which he is the proprietor or lessee in any way which would render the leased premises unfit or materially less fit for the purpose for which they are leased.

c)      The lessor has a duty to ensure that where any part of a building is leased it is kept in good repair. This includes the roof, main walls and main drains, and the common passages and common installations.

d)     Where any dwelling house, flat or room is leased or room is leased furnished, the lessor has a duty to ensure that the house, flat or room is fit for habitation at the commencement of the tenancy.

e)      The lessor has a duty to keep the premises fit for habitation if at any time the leased premises are destroyed or damaged by fire, civil commotion or accident not attributable to negligence of the lessee, his servants, or his licensees.

Section 54 of rla  There is an implied agreeement on the part of the lessee:-

a)      To pay rent reserved by the lease at the times and in the manner specified.

b)      To pay all rates, taxes and other outgoings which are at any payable in respect of the leased premises during the continuance of the lease unless the same are payable exclusively by the lessor by virtue of any written law.

c)      To keep all buildings comprised in the lease and all boundary marks in repair except where part only of the building is leased or where a dwelling house is leased furnished.

d)     To keep the leased premises in repair where part only of a building is leased or where a dwelling house is leased furnished except the roof, main walls and main drains and the common passages and common installations

e)      To keep the furniture in good condition as it were at the commencement of the period where the lease is of furnished premises, fair wear and tear only excepted and to replace such articles as are lost, destroyed or so damaged as to be beyond repair with articles of equal value to those so lost, destroyed or damaged.

f)       To permit the lessor or his agent with or without workmen or others at all convenient times and after reasonable notice to enter on the lased premises and examine their condition.

g)      To repair or otherwise make good any defect or breach of agreement for which the lessee is responsible and of which notice has been given by the lessor to the lessee within such reasonable period as may be specified in the notice.

h)      Not to transfer, charge, sublease or otherwise part with possession of the leased premises or nay part thereof without the previous written consent of the lessor, but which consent shall not be unreasonably withheld. 

Where the Act is silent, ITPA does not apply but one goes straight to the common law.

Obtain Conveyancing precedents – precedents of documents that have been registered.

• Copies of precedents under each Act
• Transfer under the RTA
• Conveyance under the GLA
• Mortgage under the GLA
• Charge under the RTA
• Charge under the RLA (Format approved by the Chief Land Registrar)
• Lease under the GLA
• Lease under the RTA
• Lease under the RLA ( approved by the CLR)
• Title Documents themselves.
• Grant under RTA
• Certificate of Title under RTA
• Certificate of Lease under the RTA

Execution Of Documents And Attestation Of Signatures

By execution we mean signing of the documents and by attestation we mean witnessing of the documents.

• ITPA Sections 59 and 123
• RTA Sections 50-51 and 58
• RLA Sections 109-110,

Section 109 provides that very instrument evidencing a disposition shall be executed by all persons shown by the register to be proprietors of the interest affected and by all other parties to the instrument. There is a proviso to the effect that the registrar may dispense with execution by any particular party [other than the transferor or transferee] where he considers that the execution is necessary.

Subject to section 124 [2] an instrument shall be deemed to have been executed only: -

a)      By a natural person, if signed by him;

b)      by  corporation :- if sealed with the common seal of the corporation, affixed thereto in the presence of and attested by its clerk, secretary or other permanent officer and by a member of the board f directors, council or other governing body of the corporation.

Section 110 Provides that unless dispensed a person executing an instrument shall appear before the registrar or such public officer or other person as is prescribed and unless he is known to the registrar or the public officer or other person, shall be accompanied by a credible witness for the purpose of establishing his identity.

113-117 and the 4^th Schedule; Rule 7 RL Rules the provisions under the LTA and GLA do not contain provisions governing execution and attestation, were they are silent we apply the ITPA.  We look at the Judicature Act which directs us to ITPA.  Where all the statutes are silent, we look at the common law.

Under the ITPA if a Mortgage is created under Section 59 of ITPA it has to be signed by the mortgagor and attested by two witnesses one of whom must be an advocate under Section 69(4)(a).  The reason for this requirement is given in Section 69(1) the reason being that the advocate is required to explain Section 69(1) to the mortgagor, this is the section that grants a mortgagee the statutory power of sale.  The Advocate must sign a certificate stating that he has explained S 69(1) to the mortgagor.

Section 69(4)(a) 

The other transaction under ITPA is a gift of land as opposed to a sale where someone is paying a purchase price, this may take place e.g. where a father gives land to his daughter and the consideration is love and affection as no money is changing hands.  The gift must be effected by the donor executing an instrument and his signature must be attested by at least two witnesses.   Gift of Land is under Section 123 of ITPA.

In the case of other instruments the ITPA is silent and only provides for mortgage and gift of land.  It is silent on execution and attestation of other instruments such as leases, easements etc and therefore we turn to the common law as modified by equity.

Under the Common Law every document is signed by all the parties to the transaction and the signatures are witnessed/attested.  In certain cases, attestation is considered unnecessary, e.g. in the case of transfer (sale) where there are no covenants to or agreements, entered into by the purchaser, in such a case, only the vendor’s signature is required.  The same reasoning applies if it is a discharge.

If it is a re-conveyance or re-assignment of mortgage only the signature of the lender is required.  The mortgagor’s signature is not required since the purpose of there-conveyance is merely to re-transfer the property after due payment of the mortgage debt by the borrower who has duly performed all the covenants on his part.  The mortgagee is just exercising his right to redeem his property.

Conveyancing By Way Of Deed

Conveyancing under both the LTA and GLA is by way of Deed.  A deed has 3 main essentials.

1.                  Signature – it binds the party that signs the document and therefore one can be sued on the contract.  By signing one is opening themselves to the legal consequences of not obeying the contract.

2.                  Must be under Seal – this links the parties signing the documents and gives validity to the document.  It also prevents fraud.  Under Section 2(1) of the Law of Contract Act (Cap 23) provides that “No contract in writing shall be void or unenforceable by reason only that it is not under seal.”

3.                  Deed Delivery – this is so that the interest must pass, there must be delivery.  In England we have a system of land where land is registered and another system where land is not registered.  In a system where there is no registration, the property in an instrument passes with the delivery of that instrument or deed but if that instrument requires to be registered, the property will not pass just by the delivery of the instrument, it must be registered.   Under Kenyan law, where a transaction requires to be registered, the deed must be registered for an interest in land to vest.  Registration allows evidence to be adduced in court concerning that instrument.

Delivery does not therefore constitute an effective disposition for registrable transactions;

Registrable transactions are transactions which are required by law to be registered.

Sections 99-101 of the GLA and Section 58 of the LTA are to the effect that property passes by registration of the appropriate instrument.

Execution By Corporations

In the case of corporations which are required to have a common seal, execution of documents is done under the common seal of the corporation.  The seal is affixed in the presence of either 2 Directors of the Company or a Director and the Company Secretary.

There are other corporations that are not required to have a seal or they may have a seal but their Memorandum and Articles of Association allows them to have attorneys sign the documents on behalf of the corporations.  Corporations which are not required to have a common seal will usually have their documents executed by a duly constituted Attorney of the corporation or an officer of the corporation who is authorised to execute documents on behalf of the corporation by the corporation’s charter.

The National Bank of Kenya is one corporation where a duly constituted attorney may sign on behalf of the corporation.

Execution Under The Rta

The RTA is silent on execution.  In practice, however, both or all parties to a transaction sign the instrument.  In some cases, only one signature is required e.g. discharge of charge where the borrower has repaid all the monies due and the property is no longer encumbered.  Here, the signature of the borrower is not required.  The same argument goes for a transfer and only the seller’s signature is necessary.

Attestation Under The Rta

When it comes to attestation, the RTA contains specific instructions

Under the RTA the state guarantees title; the state is saying that as far as your rights are concerned, your interests are safeguarded and the state is liable if there is an error in the register, the register is valid and that there are no mistakes and on that basis you are being guaranteed that what you are seeing is valid.  When you suffer loss because of an erroneous entry in the register, the state is liable and therefore has to ensure that the instruments are properly done.   Because the State has that interest, it has to make sure that credible persons must witness those documents that will be registered.  Parliament has appointed credible persons and for purposes of witnessing

The following officers are authorise to witness signing in Kenya

1. Judge or Magistrate
2. Registrar of Titles
3. Notary Public
4. Advocate
5. Justice of the Peace
6. Registrar of Deputy Registrar of the High Court
7. Administrative Officer (e.g. D.O., D.C. etc)

Documents executed in the United Kingdom and Common Wealth

They can be executed by

1. Judge or Magistrate
2. Notary Public
3. Commissioner for Oaths
4. Mayor or Recorder or Chief Officer of any City or Municipal Corporation.

Documents executed in Uganda and Tanzania:

Attestation is by persons authorised to witness documents executed in the UK and Commonwealth with the addition of an administrative officer.

Documents executed in any other place:

This can be executed by a Kenya Consular officer, consular agent or pro-consul or acting consular officer, consular agent or pro-consul, exercising his function in that place.  You could also have any other person specially appointed by the President in that behalf.

Attestation Under The RTA

Attestation is not required for documents executed by the President in his official capacity this is under the RTA Section 58(3).

Attestation is also not required for documents executed under the Common Seal of a Company within the meaning of the Companies Act (Cap 486) and the RTA Section 58(3).  Note that if a company under the RTA is signing a Charge then one of the witnesses must still be an Advocate.

In the case of a charge, if the chargee is to exercise its statutory power of sale, one of the witnesses must be an advocate ITPA Section 69(a)

Execution Under Rla

Section 108 states that every disposition of land, lease or charge shall be effected by an instrument in the prescribed form.

Section 109 states that every instrument must be signed by both or all parties to the instrument.

However, the proviso to Section 109 gives the registrar power to dispense with this requirement except for the signature of the transferor or transferee.  But not in the case of a transfer but in the case of any other instrument.  Discharge forms under the RLA are only signed by one party mainly the Chargee.  Previously the printed discharge forms for RLA had provisions for signature for the Chargee and the Chargor but presently the new forms do away with the signature of the Chargor.

Verification Under RLA

The State guarantees title

If there is Error in register resulting in loss the state provides for indemnity under Sections 144-147 except for the first registration as stated under Section 144(1)

Signing of the documents under the Act must therefore be witnessed by prescribed persons. 

The terminology under RLA does not talk of execution and attestation but talks of verification which is a bit more than just execution.

Documents are divided into 3 categories

The RLA requires more than just witnessing the execution of a document.  It also requires verification of the execution of the document:

Section110

Section 110 requires the person executing the document to appear before the Registrar or such public officer or other person as prescribed.

Where the person execution the instrument is unknown to the Registrar, public officer or other person, he must be accompanied by a credible witness.

The witness or prescribed officer must satisfy himself/herself as to the identity of the signatory and ascertain whether he/she freely and voluntarily executed the document.

The prescribed officer is then required to complete a certificate to the effect that they have identified the person signing and that the person signing has freely and voluntarily executed the document.

The identification of the signatory and the completion of the Certificate signify verification.

Instruments executed in the Commonwealth

1. Judge
2. Magistrate
3. Justice of the Peace
4. Notary Public
5. Commissioner for Oaths
6. Administrative Officer

Instruments executed in a Foreign Country

1. British Consular officer or pro-consul or such other person or class of persons as the Minister may determine
2. Notary Public

Instruments executed in Kenya:

1. Judge/Magistrate
2. Registrar and Deputy Registrar of the High Court
3. Registrar-General, Deputy Registrar-General
4. Administrative Officer
5. Superintendent of Prisons
6. Advocate
7. Bank Official

The RLA was intended to be a simple Act that can be understood by the citizens and should be executed even without the aid of an Advocate.

Under the RLA there is no requirement as is the case with the ITPA regime that if it is a charge that is being charged that one of the witnesses must be an advocate.  However in practice it the Advocates who normally attest.

Verification Under RLA

Where the instrument is a charge, the witness need not be an Advocate as is the case with charges under the RTA and mortgages under the LTA and GLA

RLA Section 65(1)(a) this makes provision for a special acknowledgement signed by the charger that he understands the effect of Section 74.

In practice however, the witnesses are usually advocates.

Simplifying the verification under the RLA seems to be a weakness of the Act as most of the verifying persons might not be in a position to do so.

Under Section 110 the Registrar has power to dispense with verification where:

• Such verification cannot be obtained; or
• It can only be obtained with difficulty and the Registrar has to be satisfied that the document has been properly executed; or
• In any other case in his opinion the document has been properly executed.
• The registrar is required to record his reasons for dispensing with verification.

Giving the Registrar this kind of authority seems to be a weakness especially in this age of fraudulent land transactions.

Execution Under Power Of Attorney

• A power of attorney is a document authorizing a person to do the acts of another.
• The power may be limited and may refer to particular acts or it may be unlimited and general in its form.
• When the document of the power of attorney is registered, it is under Cap 285 in the Registry of Documents, the document must also be registered in the land registry relating to the property that is the subject matter of the transaction.  This also means that when the attorney is signing the charge, his power of attorney particulars must be given in the instrument.
• A power of attorney must be executed by the Donor of the Power and thereafter stamped and registered in the Register of Powers of Attorney.
• In the case of land transactions, the power of Attorney must also be registered at the land registry where the property is registered.

Execution Under Power Of Attorney

The following provisions are on powers of attorneys

v  The GLA – Section 108

v  The RTA Section 50-51 Form M (Revocation of Power – Form N)

v  The RLA Sections 114-117; Form L17 is the Statutory Form; Revocation Form if RL 18

Stamp Duty

The Stamp Duty is a form of revenue for the Government.

Section 5 provides that every instrument set out in the Schedule to the Act, irrespective of where it was signed as long as it relates to property in Kenya, shall be chargeable with stamp duty specified in the said Schedule.

Under Section 6 of the Stamp Duty Act documents executed in Kenya and which require stamping must be stamped within 30 days of execution.  30 days from the date of the document.

For documents executed outside Kenya, Stamp Duty must be paid within 30 days of receipt of the documents in Kenya.  This becomes a matter of fact as the date the document was received in Kenya has to be proved.

Section 20 states that failure to pay Stamp Duty constitutes an offence for which a fine is payable.

A document which requires to be stamped but which is not stamped cannot be produced in evidence in court in civil proceedings.

Stamping Out Of Time

The collector has the authority to allow stamping of a document where he is satisfied that the omission or neglect to stamp did not arise form any intention to evade payment of Stamp Duty or to defraud, and the circumstances of the case justify leave being given to stamp out of time.

Where such leave is given, the instrument is stamped on payment of the unpaid stamp duty and of a penalty unless the Collector waives the penalty on being satisfied that the circumstances warrant such waiver.

Refund Of Stamp Duty

The Act gives the Collector power to refund Stamp Duty if he is satisfied that an instrument has been erroneously assessed with duty or penalty.

The application for a refund must be made within 1 year after the date of payment of that duty.

Under the GLA and the RLA, no document required by law to be stamped shall be accepted for registration unless duly stamped.  This is under Section 117 of GLA and Section 111 of the RLA.

The instruments that are required to be stamped include:

Transfer, lease, charge, mortgage, discharge, re-conveyance of mortgage, insurance policy, debenture and Memorandum and Articles of Association.

The amount of Stamp Duty depends on the transaction in question, that is, whether it is a transfer, lease, charge, etc.

The assessment of Stamp Duty is based on the consideration stated in the instrument.

Section 10 of the Stamp Duty Act – any factor or circumstance affecting the stamp duty must be stated in the instrument, which means that the instrument must identify itself to begin with because that affects Stamp Duty.  Secondly the document must also show the consideration, it must show the value of the subject matter.  In a Transfer consideration is the sale price, consideration in a Charge will be the loan,  under a Lease the rent is the consideration and therefore any matter affecting the stamp duty must be stated and consideration is one of those matters.

Failure to declare the correct amount for stamp duty is an offence.

Calculating Stamp Duty

Transfers are divided into two categories

1.                  Urban Land – land in the municipalities  - rate of stamp duty is 4%

2.                  Agricultural land Outside the Municipality.   – the rate of stamp duty is 2%

If for example the Purchase Price on agricultural land in the municipality is KShs. 2,000,000,  the rate is 4% and therefore the amount of stamp duty payable  would be KShs. 80,000/-

For a agricultural property in a rural area the purchase price is KShs. 1,000,000 at the rate of 2% the amount of Stamp duty payable on transfer will be 20,000/-

Under a Mortgage/Charge the stamp duty amount is based on the amount secured and the rate is KShs. 2/- per 1000/- or 0.2% (0.002) . for example if the Mortgage amount is KShs. 5,000,000/-  at the rate of 0.002% the stamp duty chargeable will be 10,000/-

For a further Mortgage/Charge the rate is 1KShs. Per 1000 – 0.001 or 0.1% If for example there was a further mortgage of KShs. 2,000,000/- the Stamp Duty payable will be KShs. 2000

The difference between a further charge and a second charge,  further charge is an additional facility provided by the same lender whereas a 2^nd charge another institution is giving the loan but charges the same property.

For a second Mortgage/Charge the rate will be 0.2% because it will be like a fresh charge.

The rate for an equitable mortgage or charge the rate is the same as that of a further charge which is .1%

For a Discharge of Charge or re-conveyance of mortgage it is 50cents for every 1000/- which is 0.05% or 0.0005.

The difference between a legal charge and an equitable charge lies in the way both charges are created.   An equitable charge/mortgage is created by a simple deposit of the document of title without more this deposit of the document creates an equitable charge/mortgage, this kind of transaction does not require registration.  A legal mortgage is created by Deed which must be registered and when it is registered it is notice to the public.

The RLA does not have an equitable Charge because it is the register that is conclusive of ownership under the RLA and this gives rise to the phrase that the RLA Title is only prima facie evidence of Title.

The Lease

Stamp Duty on the lease is based on the annual rent that is payable.  We have two categories

1.                  Lease for a period exceeding one year but less than 3 years and the rate is KShs. 10/- per 1000 or 1% (0.01).   For instance if we have rent per year as 1.2 million the stamp duty chargeable will be KShs. 12,000/-.

2.                  Lease for a period exceeding three years the rate is Kshs 20/- per 1000 which is 2% or (0.02) so the stamp duty chargeable here would be 24,000/-.

Where one has a rack rent or fluctuating rent, you use the figure for the highest rent.

Gift Inter Vivos

This is a gift that is given by a donor during his lifetime.  For Stamp Duty we need a consideration of a monetary figure but under gift the consideration is love and affection and so we value the property to calculate the stamp duty.  The rate to be applied will be 4% or 2% depending on whether it is in the Municipality or outside the Municipality.  In the instrument creating the gift it must fulfil the requirements of Section 10 of the Stamp Duty Act.

Transmission

A transmission is a transaction where property passes by operation of law and the particular method we have here is where property passes after death of the owner.  Where there is a testate or intestate succession.  The executor gets a grant of probate and an administrator will have letters of administration intestate.

The rate that will apply when an heir wants to transfer his share of the property to a 3^rd party will be 4% or 2% depending on where the property lies.

Registration Fees

There are Sections that make provisions for payment of registration fees.  At any rate the two statutes are Section 117 of the GLA and Section 156 of the RLA.  The essence of S. 117 is that no document shall be registered unless the registration fees have been paid. And S. 156 is to the same effect.  Under subsidiary legislation, the exact amount is provided under the GLA the subsidiary law is the Government Lands Registration Fees Rules, under the RTA the subsidiary law is the Land Titles Registration Fees Rules.   Under the RTA the 2^nd Schedule and under the RLA it is under the 5^th Schedule and if it is under Registration of Documents Act Cap 285 you go to the registration of documents fee registration.

Land Control Act Cap 302 – the consent of the land control board.  Section 2 which defines Agricultural Land. 

Section 6 – list transactions that require LCB Consent, it has also list of transactions that don’t require consent.

Section 8 dealing with the procedure for obtaining consent.

Section 13 – Effect of the decision of the land control board or land appeals board

Section 9 – transcribe the whole Section which gives situations in which land control Board consent ought generally not to be given.

Section 24 – transcribe

Rates Clearance Certificate

Section 86 of the Registered Land Act Cap 300

Section 33 of the RTA

Land Rent Clearance Certificate

Section 86A of the RLA

Consents

There are some transactions which require certain consents before the documents relating thereto can be registered. The following consents are the most important:

1. Consent Under The Land Control Act (Cap 302) (1967)

(Land Control Board Consent)

The purpose of the Land Control Act is to control transactions in agricultural land.

Land Control Areas and Land Control Boards have therefore been set up under the Act for this purpose.

S.2 defines "Agricultural land." It means:

a)         Land that is not within ­

i)          a municipality or township

ii)         an area which was a township under the Township Ordinance (now repealed)

iii)        an area which was a trading centre under the Trading Centres Ordinance (now repealed)

iv)        a market

b)         Land in the Nairobi area or in any municipality, township or urban centre that is declared by the Minister by notice in the Gazette, to be agricultural land for purposes of this Act.

Under the proviso to S.2, the definition of agricultural land excludes land which, by reason of any condition or covenant in the title thereto or any limitation imposed by law, is subject to the restriction that it may not be used for agriculture or to the requirement that it shall be used for a non-agricultural purpose.

S.6 (1) lists transactions which require LCB consent. Failure to obtain LCB consent

renders that transaction null and void. See: Mbuthia Charagu v. Kiarie Kaguru Civil

Appeal No. 87 of 1986 (Justices Nyarangi, Gicheru and Kwach, JJ.A.) The transactions    listed are as follows:

a)      Sale, transfer, lease, mortgage, exchange, partition or other disposal of or dealing in any agricultural land situated within a land control area;

b)      Division of agricultural land into two or more parcels to be held under separate titles;

c)      Issue, sale, transfer, mortgage or any other disposal of or dealing with any share in a private company or co-operative society which owns agricultural land.

d)     Under S.6 (2), the declaration of a trust of agricultural land situated within a land control area also requires LCB consent.

Under S.6 (3), LCB consent is not required in respect of the following transactions:

a)      Transmissions of agricultural land (whether by testate or instate succession) unless that transmission would result in the division of the land into two or more parcels to be held under separate titles;

b)      Transactions to which the Government is a party or transactions which involve trust land.

S.8 states the procedure for obtaining L.C.B consent. Applications are to be made to the L.C.B. through the appropriate lands office, using prescribed forms (See Fom1 1 of the Schedule). Form 2 of the Schedule contains the format of the Letter of Consent.

If an applicant is dissatisfied with the decision of the L.C.B. refusing consent, an appeal lies to the Provincial Land Control Appeals Board from which a higher appeal lies to the Central Land Control Appeals Board. Under S. 13 (2) the decision of the Central Land Control Appeals Board shall be final and shall not be questioned in any court.

S.9 (1) (b) ­ -     Lists situations in which Land Control Board consent ought generally to be refused. From these situations, the following objectives of the Land Control Act can be identified:

a)         To ensure that agricultural land is acquired by persons who can farm the land properly. (Therefore the farming experience of the purchaser is important. However, this is so in theory only.)

b)         To ensure that agricultural land is equitably distributed among persons who can farm it. (Therefore it is necessary to know how much agricultural land a person already has. Again, this is true in theory only.)

c)         To ensure that land is not acquired for speculative purposes.

Under S.9 (1) (c), where the person intending to acquire the land is a non-citizen, consent shall not be given. However, under S.24, the President has power to exempt any transaction or person from the provisions of the Land Control Act. Such exemption is granted by way of notice in the Gazette.

2. Consent Of Commissioner Of Lands

All leases that are granted by the Government are subject to such conditions as to development and user. For this reason, there is a prohibition against transferring, letting, subletting, mortgaging or charging the leased property without the written consent of the Commissioner of Lands on behalf of the Government. Such prohibitions are usually contained in the title documents.

3. Consent Of Chief Engineer Kenya Rail Ways Corporation

Where the property in question is adjacent to a railway line i.e. within the jurisdiction of Kenya Railways Corporation, the consent of the Chief Engineer of the Corporation must be sought. This applies to leases granted by the Government as well as agricultural land. The consent of the Corporation will be required in addition to that of the Commissioner of Lands or the LCB as the case may be.

4. Consent Mortgagee/Chargee

The chargor or mortgagor must obtain the consent of the chargee or mortgagee before he can transfer or lease the mortgaged property which is the security of the chargee or mortagagee. This provision is usually contained in the charge/mortgage instrument.

5. Consent Of Landlord And Head Lessor

A tenant must always obtain the consent of the landlord if he wishes to assign his interest or sublet the property.

Clearance Certificates

(1)        Rates Clearance Certificate

This is issued by the appropriate local authority in whose area the land is situated. It certifies that all monies payable to the local authority in respect of that property have been paid. Such monies include:

i)          land rates

ii)         interest charges on rates and

iii)        unpaid water bills.

It is necessary to obtain a Rates Clearance Certificate before a transfer is presented for registration: S.86 RLA; S.33 RT A. Both state that the Registrar shall not register a transfer unless a Rates Clearance Certificate is produced to him where necessary.

(2)        Land Rent Clearance Certificate

All leaseholds from the Government are subject to an annual rent that is payable by the grantee of the lease. Before registering a transaction involving leasehold land, the grantee must show that all land rent has been paid to the Government. E.g. Before registering a transfer (of a leasehold interest), the vendor must obtain a Land Rent Clearance Certificate which is a document certifying that all land rent due has been paid.  S.86A RLA - provides that the Registrar shall not register a transfer unless a Land Rent Clearance Certificate is produced to him where necessary.

(Note: No LRCC is necessary where land is freehold)

Examples of other transactions where a LRCC is required for leasehold land: Lease, Charge.

Registration

Purpose and Advantages Of Registration

Purpose: to record property rights and interests in land thereby making it possible to ascertain those rights and interests.

Advantages of registration:

1. Security of tenure: A registered proprietor acquires an indefeasible title against the whole world. The security of tenure acquired through registration also gives the property owner a right to indemnity from the Government where there is fraud or an error in the Register. See RTA Ss.23 and 24; RLA Ss. 144-147, but note the qualification in S.l43 (1).

2. Reduction of unnecessary litigation: The registered owner can transact or settle his land without the fear of being sued to challenge his title because upon registration, he acquires an indefeasible title against the whole world.

3. Prevention of re-fragmentation of land: Registration helps to determine whether or not a particular piece of land can be sub-divided because his title details pertaining to the land, such as acreage, will have been noted in the Register.

4. Facilitation of Government property tax administration: Through registration, the Government is able to identify persons/property owners on whom to levy tax in respect of a particular piece of land.

5. Efficient administration of the loan system: The security of title which flows from registration makes it possible for property owners to obtain loans from financial institutions.

6. Efficient facilitation of the loan system: A prospective purchaser has more faith dealing with an owner whose land is registered.

7. Prevention of concealed dealings in land: Registration gives publicity to land transactions. Since the register is a public document and is therefore open to the public, it is possible to ascertain who owns what interest in land.

Summary Of Land Registration Systems In Kenya

There are 5 systems: RDA, LTA, GLA, RTA and RLA.

1.         RDA 1901 (Cap 285)

Under this Act, isolated transactions relating to land are recorded and registered in an uncoordinated manner. The Act is also used for registering transactions relating to adjudicated claims at the coast. There are no separate folios for each piece or parcel of land.

The record of a transaction under this Act is merely evidence that a transaction has taken place, but is not proof of the legality of the transaction. There is no guarantee of title.

The registration of a document under this Act is no longer confined to matters relating to land.

There are two registries, one in Mombasa and the other in Nairobi.

2.         LTA 1908 (Cap 282)

This Act deals with matters relating to private ownership of land at the coast. The office of Recorder of Titles was set up under this Act to deal with adjudication of private claims to land. Titles were issued on proof of ownership. If a claim of ownership was unsuccessful, the land in question became Government land.

Titles issued under the L T A are not Government grants. They are issued on the basis of existing rights and are freeholds.

The L T A introduced an advanced form of registration of documents with a separate folio for each piece or parcel of land. The register under the L T A is a volume called an Abstract Register. In the Register, short particulars of documents presented for registration are recorded. Copies of these documents. are kept in large envelopes called Deed files.

The Government does not guarantee title under the L T A and no indemnity is provided.

Upon enactment of the R T A in 1920, new and successful claims under the L T A were registered under the R T A. Adjudication would take place under the L T A but title would be registered under the RT A.

Since the enactment of the RLA in 1963, some of the titles registered under the L T A and RT A have been converted to the RLA on a voluntary basis.

3.         THE GLA 1915 (Cap 280)

This Act deals with land which was the subject of Government grants prior to 1920, whether 'freehold 'or leasehold, with the exception of leaseholds which have been converted from 99 years to 999 years or to freeholds. Such leaseholds are registered under the R T A.

The Register under the GLA is modeled on that of the LTA. A separate folio is opened for each piece or parcel of land and transactions are registered against each parcel. Copies of all deeds are kept in the Registry. Short particulars of each transaction are recorded in a volume referred to as an Abstract Register.

It is the deed, not the title, which is registered. As such, when investigating title under the GLA, it is necessary to trace backwards upto the Government grant in order to ascertain a good root of title. The State does not guarantee title and no indemnity is provided.

There two registries, one in Mombasa relating to public/Government land at the coast, and the other in Nairobi in respect of the remainder of the country.

4.         RTA 1920 (Cap 281)

This Act relates to the following lands:

1)         All land which is the subject of a Government grant since 1920 or a Certificate of Title issued by the recorder of Titles after 1920.

2)         Leaseholds which have been converted from 99 years to 999 years or to freeholds.

3)         Titles that have been converted from the LTA and GLA on a voluntary basis.

4)         Grants that are made by local authorities in respect of trust land. Trust land is land which is vested in a local authority in whose area the land is situated for the benefit of persons ordinarily resident in that area.

The title is a Grant or a Certificate of Title issued to the proprietor. A duplicate of the Grant or Certificate of Title is kept in the Registry. The original Grant or Certificate of Title is kept by the proprietor.

The State guarantees title and provides for indemnity. See Ss. 23 and 24.

Under the RT A, coastal titles are prefixed "CR". For the remainder of the country, the prefix is "IR". For any trust land the prefix is "IRN".

A piece of land under the RT A may therefore be refereed to using its Title Number which is CR, 1R or IRN, or by means of a Land Reference Number which is a number given to that piece of land by the Director of Survey.

Under the RT A, there is a Register for every piece of land. The Register is a duplicate of the Grant or Certificate of Title issued to the proprietor. The original Grant or Certificate of Title is kept by the proprietor. Registrable transactions under the Act are registered against each title. A memorandum of the transaction or dealing is endorsed on the Register and on the original Grant or Certificate of Title issued to the proprietor. For this reason, the original Grant or Certificate of Title must be produced to the Registrar whenever an instrument containing any dealing in the land is presented to the Registrar for registration. The duplicate of the Grant or Certificate of Title and the instruments which support the memoranda or entries in the Register are kept in a Deed File. The Deed File is sometimes also referred to as the Register.

For titles under the LTA, GLA and RTA, it is required that a Survey Deed Plan (prepared by the Director of Survey) be prepared for every piece of land. That Plan must be attached to the title document for purposes of identification of the piece of land.

4.         RLA 1963 (Cap 300)

This Act governs the following lands:

1)         Titles that have been converted from the LTA, GLA and RTA on a voluntary basis.

2)         Adjudications under the Land Adjudication Act (Cap 284) and Land Consolidation Act (Cap 293) since 1963 and successful claims under the L T A after 1963.

3)         Titles which were registered under the Land Registration (Special Areas) Act of 1959. This was land held under customary law and registered after adjudication and consolidation.

The general rule under the RLA is that a proprietor's title is unimpeachable except on grounds of fraud or mistake to which the proprietor is a party. Exception: A first registration however, cannot be impeached - See: S. I 43(1) RLA. In addition, the State guarantees title and provides for indemnity. See Ss. 144 - 147.

Under the RLA, the Director of Survey is required to prepare a Registry Index Map for every District. Survey Deed Plans are not required under the RLA, unlike the L T A, GLA, and RTA. The Index Map is kept by the District Land Registrar in the appropriate District Land Registry.

Land under the RLA is described by reference to its serial number which is a combination of the District, Section or Block and the Parcel Number.

The title document under the RLA is a Land Certificate (for absolute proprietorship) or Certificate of Lease (for a leasehold). These are only issued on request by the proprietor upon payment of the requisite fee. Where they are issued, they must be produced to the Registrar when presenting an instrument for the registration of a transaction or dealing.

The form of the Register is found in the First Schedule to the Act. There is a Register for every piece of Land (absolute proprietorship) and a separate Register for every Lease. See S. 10.

The Register is divided into 3 sections:

1.         The Property Section:

This contains the title of the Land or Lease and any plan.

2.         The Proprietorship Section:

This contains the name and address of the proprietor and any inhibition, caution or restriction affecting the owner's right of disposition.

3.         The Encumbrances Section

This contains any encumbrances that affect the land e.g. a charge or any right adversely affecting the land or lease.

The instruments which support the entries in the Register are kept in a Parcel File. Once  the Register is complied, it is conclusive evidence of the matters stated therein. Therefore anyone dealing with a proprietor under the RLA is not required to trace backwards to find out how the person became a proprietor. See S.39.

REGISTRIES: SUMMARY

RDA - Registry of Documents in Nairobi and Mombasa

L T A - Land Titles Registry in Mombasa Only

GLA - Government Lands Registry in Nairobi and Mombasa

RTA - Land Titles Registry in Nairobi and Mombasa

RLA - District Land Registry in every District

Registrable Transactions

Compulsory Registration

ITPA - Ss. 59 and 123

LTA - Ss. 57 and 58

GLA - Ss. 95 and 99-102

RTA - Ss. 20, 32, 34, 35, 40, 41 and 46

RLA - Ss. 38,47,65,85 and 94-96

Certain transactions in land must be registered in order to create rights and liabilities (registrable transactions). They include all conveyances, transfers, legal mortgages and charges and leases of specified duration.

ITPA

S.59 requires registration of any mortgage other than a mortgage by deposit of documents of title (equitable mortgage) where the money secured is more than two hundred shillings.

S.123 provides that a gift of immovable property be made by a registered instrument.

Note : The above provisions apply to the RDA and L T A since the two Acts are silent.

GLA

S.99 requires registration of all transactions affecting or conferring or purporting to confer, limit or extinguish any right, title or interest in land under the Act, with the exception of a lease for a term not exceeding one year.

8.100 (1) provides that no evidence shall be admissible in a civil court in respect of specified transactions unless the instrument is registered. The transactions include a sale, lease, lien and mortgage.

S.101 is to the effect that the unregistered instrument shall be deemed to be void.

RTA

S.20 - No land which is subject to the Act shall be transferred, transmitted, charged or dealt with except in accordance with the Act and any attempt to deal with it otherwise shall be null and void and of no effect.

S.32 (1) - a document which is not registered shall' be ineffectual to transfer any land or any interest in land from one person to another.

NOTE: S.32 (2) - An unregistered instrument may, however, operate as a contract. This sub-section was inserted via the Statute Law (Miscellaneous Amendments) Act 1989 (No. 20 of 1989).

Ss. 34 and 35 - A Transfer under the Act must be effected by a registered instrument.

Ss. 40 and 41 - Any Lease for a period exceeding 12 months or for a period of less than 12 months but which contains a right to purchase the reversion must be registered otherwise it shall be invalid.

S.46 - A Legal Charge must be effected by a registered instrument.

RLA

S.38 (l) -, No land, lease or charge shall be disposed of except in accordance with the Act. Any attempt to dispose of it otherwise shall be ineffectual to create transfer, vary or extinguish any estate or interest in land.

HOWEVER: S.38 (2) - Any unregistered instrument may operate as a contract inter partes. This provision was enacted due to the difficulties under the LTA, GLA and RTA (prior to the 1989 amendment) concerning leases.

The RLA provides for compulsory registration of the following transactions:

S47 - Leases:

(i)                 for a period exceeding 2 years; or

(ii)               for the life of the lessor or of the lessee; or

(iii)             for a period less than 2 years but which gives the lessee the opinion to renew the lease for a period which if added to the original term would exceed 2 years.

S.65 - Charges

S.94 - Easements

S.95 - Restrictive Covenants S.96 - Profits

Legal Consequences or Effect of Registration

Registration of a registrable instrument gives the proprietor priority of the registered

instrument. The rights acquired through registration are free from all other interests and claims. They are however, subject to any prior registered interests and overriding interests.

The effect of registration is that it confers, varies, transfers or extinguishes an interest.

Time Limits For Registration

Under the L T A, GLA and R T A, there is no time limit as to when a document requiring registration must be presented for registration. (Contrast this with the time limit for stamping).

Under the RLA S40, however, the document must be presented for registration within 3 months from the date of the document. Failure to do this will attract a penalty fee.

S41 - gives the Registrar power to compel registration of a document where any person, through willful default, has failed to register a registrable instrument.

Legal Position Regarding Instruments Which Are Compulsorily Registrable But Have Not In Fact Been Registered.

Problems have arisen particularly with regard to leases. What is the position of the parties under such instruments?

GLA

S.100 - No evidence shall be given of an unregistered lease for a period which exceeds one year. See:

Merali v. Parker 1956) 29 KLR 26, Per Justice Rudd:

"The effect of that section is that while evidence cannot be given to prove a lease for more than one year, evidence can be given to prove an agreement for a lease and the effect of that agreement coupled with possession is to create a tenancy or, as the ITP A and GLA call it, a lease for one year only in the first instance and thereafter to continue according to the provisions of Ss. 106 and 116 of the ITPA."

S.106 ITP A - Deals with a situation where the term/period of a lease will depend on its purpose - i.e. whether for manufacturing or agricultural purposes or whether for any other purpose.

Manufacturing or agricultural purpose - It will be a lease from year to year terminable by 6 months notice.

Any other purpose - it will be a lease from month to month terminable by 15 days notice.

S.116 ITP A - Deals with a tenancy by holding over, i.e. where a tenant remains in possession after expiry of the original lease. Such a tenancy is construed as being from year to year or month to month depending on the purpose of the lease.

NOTE: An unregistered lease for any purpose cannot exceed the maximum period of one year, i.e. in relation to registrable leases under the GLA.

Bains v. Chogley [1949] 16 EACA 27

This case concerned an unregistered assignment of lease under the GLA. Held: As it was a lease for manufacturing purposes, it was a lease from year to year and 6 months notice was required in order to determine it.

RTA

The proviso to S.40 RT A states that a lease for a period exceeding 12 months and which remains unregistered is invalid. See:

Clarke v. Sondhi [1963] EA 107

The question in this case was: "What is the position of a person in occupation of premises who has an unregistered lease for a fixed term of 3 years? The rent was supposed to be paid annually but it was paid monthly. The tenant took possession of the premises, paid rent in full for the first 2 months and then defaulted. The landlord sought to recover the arrears of rent. The tenant's defence was that he was not liable to pay the arrears because the Landlord had no cause of action since the lease was not registered as required by law. As such, the lease did not pass any legal estate. The tenant further argued that the unregistered lease was either void or unenforceable since the landlord had not obtained the necessary consent from the Government which was the Head Lessor.

Held. inter alia:

(1)               With regard to the consent question, this was a matter between the Government and landlord. It was upto the Government to decide whether or not it wished to exercise its right of forfeiture and that as the Government had not sought to forfeit the Grant, the breach did not in the circumstances affect the relationship of landlord and tenant existing or purporting to exist between the parties to the suit.

(2)               An unregistered lease could operate as a contract inter partes and confer on the party who is the intending tenant a right to enforce the contract specifically and obtain from the intending landlord a registered lease.

(3)               The proviso to S.40 of the RTA does not exclude the use of an unregistered lease to show the terms of the contract between the parties. (Note: This is aimed at protecting the landlord e.g. where the tenant defaults in payment of rent and claims that he is not bound as there is no valid lease.)

Souza Figuerido & Co. Ltd. v. Moorings Hotel Ltd. [1960] EA 926

This case concerned an unregistered lease (under R T A) of club premises. Held: An unregistered lease cannot create any interest, right or confer any estate which is valid against third parties, but that the unregistered lease operates as a contract inter partes which can be specifically enforced.

Kenyan position:

No "lease" is created; only a "tenancy" is created.

(i)                 in writing;

(ii)               is signed by all the parties thereto; and

(iii)             incorporates an the terms which the parties have expressly agreed in one document; and

(b)        the signature of each party signing has been attested by a witness who is present when the contract was signed by such party".

The two Acts repeal the previous sub-section (3) of Section 3. The repealed sub-section (3) provided as follows:

"(3) No suit shall be brought upon a contract for the disposition of an interest in land unless the agreement upon which the suit is founded, or some memorandum or note thereof, is in writing and is signed by the party to be charged or by some person authorised by him to sign it:

Provided that such a suit shall not be prevented by reason only of the absence of writing, where an intending purchaser or lessee who has performed or is willing to perform his part of a contract ­

(i)                 has in part performance of the contract taken possession of the property or any part thereof; or

(ii)               being already in possession, continues in part performance of the contract and has done some other act in furtherance of the contract.

Under this sub-section, possession coupled with part performance constituted a valid and effective disposition of an interest in land. BUT NOTE: This was true only for non-­registrable interests.

Priority of Registered Interests

• RDA - S.27
• LTA - S.60
• GLA - S.104
• RTA - S.28
• ITPA - S.78

RLA - S.42

Priority is. given by the date of registration which is the same as the date on which the document is presented for registration.

Priority is NOT given by the date of the document (i.e. the date which parties have inserted in the document or the date of execution of the document).

Official Search

This is a written request to the Registrar to carry out the search. The Registrar issues a Certificate of Official Search. The application for an official search is made on a prescribed form and the requisite fee is paid.

See: Ss. 127 GLA, 79 RTA and 36 and 43 RLA.

Advantages of an Official Search

These are found under the RLA only.

1.         Stay of Registration

The first advantage is a "stay of registration" contained in S. 143. The Section provides, that where a person applies for an official search with the consent of the proprietor and he states the particulars of the proposed transaction, he will be given a suspension period of 14 days. If within that period he completes the transaction and presents it for registration, he gets priority for that transaction over any other document or caution that may have been presented before that transaction during the suspension period.

2.         Indemnity

S. 144 states that where a person suffers loss as a result of an incorrect official search, he will be indemnified by the Government. The liability will not lie on the Advocate who requested for the search.

The other statutes protect Land Registrars. E.g, S.126 GLA - states that a Registrar shall not be liable for anything done in good faith. The same case applies under RTA S. 77 and LTA S. 79.

3.         Requisitions,

These are more theoretical than practical. "Requisition" is a technical term for any questions a person may have regarding title. The questions are sent to the proprietor of land (or lease) to clarify matters concerning e.g. description of property, acreage, encumbrances etc. Where the contract or agreement for sale is silent on these matters, then requisitions must be delivered by the proprietor within a reasonable time.

4.         Inspection of the Property

purpose: to discover what overriding interests there are e.g. non-registrable leases, any other rights given to third parties and any persons who are in possession of the land. Under the RLA, for example, rights of persons in receipt of profits are overriding interests.

Conveyancing Procedure and Steps in Drafting Generally

Before parties to a proposed transaction instruct their respective Advocates, they will have had some discussion regarding the transaction. They may even have entered into a binding contract. It is therefore important to preserve any correspondence between the parties which took place before an Advocate was instructed to act in the transaction.

It is important to distinguish between cases where parties have decided in their minds to be legally bound and cases where parties are merely interested in entering into the transaction. In the latter case, the Advocate should advise the client to complete negotiating and come to an agreement.

An advocate should take instructions from his client, not the other party to the transaction. It is also not advisable for one Advocate to act for both the purchaser and vendor. An Advocate requires full information regarding the transaction including the particulars of the parties and terms agreed upon. Many clients expect the Advocate to give them information on matters that are non-legal. Where questions are technical, the Advocate should advise the client to consult the appropriate experts e.g. surveyor, valuer or accountant.

After taking instructions to act in a transaction, the Advocate carries out the necessary research and, where applicable, looks at precedents before drafting the requisite documents. '

Requirements In Drafting

There are three main requirements:

1)         Facts - These may be defined as the background on which drafting takes place. They depend on the nature of the transaction. In essence, there is no real distinction between the so-called "facts" and the specific instructions given by the client.

2)         Principles of law - Advocates are expected to know the law regarding the

particular transaction.

3)         Language Form - This is the phraseology of documents. Precedents should be used as a guide for a framework. They can also be used as a "check list" (e.g. compare two mortgage documents to ensure that no provisions are left out which protect your client).

In drafting a document, the intention of the parties is paramount. The provisions drafted must be in accordance with the client's instructions. The Advocate is also required to supplement the terms that have been agreed upon because many clients are laypersons and cannot state their requirements clearly, e.g. a client may refer to a "Second Charge" Instead of a "Further Charge".

Drafting And Use Of Precedents In Drafting

Excerpt from Stanley Robinson: Drafting

"Drafting calls upon all the skills of lawyers; Good lawyers are those who readily understand their clients, are quick to appreciate the facts in which documents are to operate, are responsive to changes particularly those relating to business and social conditions and have a better than average command of the law, yet accept the need to draft documents in simple language. They are careful. They do not use a form of words unless they have considered its purpose and how it achieves it. They have a wide experience of law and life. That experience cannot be acquired overnight. Lawyers who seek to be good draftsmen must draft and must write provisions. They cannot do this unless they have an adequate understanding of provisions. Thus, they must understand the nature of the language of the law and the nature of generality of expression. Without understanding these elements they will be found to rely on the forms in the office and precedent books rather than principles. Complete reliance on forms and precedents books does not develop drafting skill. It is of little value. Consider, for example, the misfortune of a person who either as a clerk to a solicitor or as a student in a conveyance chamber begins to 'study the practice of conveyancing which is taught by form or precedent rather than principle. He is made to copy precedents without knowing either their application or rules on which they are grounded. When he begins to prepare drafts he is led to expect all his information from these forms and his knowledge is in the end as limited as the means by which he has been instructed. The misfortune can be avoided if solicitors and conveyancers instruct clerks and students in principles of law and drafting techniques.

Responsibilities Of An Advocate In Relation To Conveyancing Practice Generally

The exact responsibilities depend on which party the Advocate is acting for in a given transaction, i.e., whether the Advocate is acting for the Vendor or Purchaser in a sale of land or the Borrower/Mortgager or Lender/Mortgagee in a Mortgage or the Lessor or Lessee in a Lease.

The general responsibilities of the Advocate and the steps to be followed are as follows:

1.                  Receiving instructions - written records of the client's instructions are important.

2.                  Request for particulars from the client - these depend on the nature of the transaction. However, particulars that are common to all transactions include names and addresses of all the parties concerned, particulars of the property e.g. Land Reference Number particulars of the Advocate acting for the other party, etc.

3.                  Finding out the law relating to the given transaction, e.g. If an Advocate is acting for a purchaser, he must investigate the title to the land to determine what registration system applies to that land.

4.                  Drafting of documents.

5.                  Approval of drafts by the Advocate for the party. The Advocate who drafted the document sends it to the other party's Advocate for approval.

6.                  Obtaining further instructions from the client where needed.

7.                  Engrossing documents upon approval - final/fair copy.

8.                  The documents are then executed, attested, stamped and registered, where appropriate.

9.                  Generally, the Advocate must also advise his client on the law relating to the transaction: E.g. in a sale of land, the Advocate should know at what stage the money is to be released to the vendor.

10.              Other responsibilities may also include litigation. Conveyancing practice, however, is procedural and litigation only arises when something goes wrong with the transaction.

Conveyancing Procedure: Specific Instruments

Conveyancing transactions arise out of three categories of property rights. These are:

1.         Estates:            a) Freeholds (ITP A), Absolute proprietorship (RLA)

                                    b) Leaseholds

a)         Freeholds are:

i)                    Fee Simple

ii)                  Fee Tail

iii)                Life Interest

iv)                Estate par autre vie

b)         Leaseholds are:

i)          For Specific Period

ii)         Periodic Tenancies

iii)        Tenancies at Sufferance

iv)        Tenancies at Will

2.                  Encumbrances: These are defined as burdens over land otherwise owned by another e.g. Mortgages and Charges.

3.                  Servitudes: These are rights in the soil of another - e.g. easements, profits a Prendre. They are referred to as "rights in alieno solo".

The transactions that arise out of these rights are:

1. Mortgages and Charges
2. Re-conveyance of Mortgage and Discharge of Charge
3. Leases and Assignment of Leases
4. Transfers
5. Transmissions
6. Easements
7. Profits a Prendre

LEASES

Ss. 3 and 45 - 64 RLA

Ss. 105- 117 ITPA

Definition of Lease

In S. 3- RLA as a grant with or without consideration by the proprietor of land to the exclusive possession of that land.

"Lease" refers to the right so granted as well-as-the instrument granting it. Reference to a lease also includes a sub-lease but does not include an agreement to lease.

S. 105- ITPA - a-lease of immovable property is a transfer of the right to enjoy such property.

Definition of Licence

A license is defined as a permission given by the proprietor of land which allows the licensee to do some act in relation to the land which would otherwise be a trespass-, but it does not include an easement- or profit. 

Lease and Licence distinguished

1. Protected tenancies, the Rent Restriction Act (Cap 296) and the Landlord and Tenant (Shops Hotels and Catering Establishments} Act (Cap 301) only give protection to a tenant and not a licensee.

2. Inheritance, a lease, can be inherited, assigned or sub-let. A licence is a mere personal privilege of occupation and therefore it cannot be the subject of inheritance or assignment. See Runda Coffee Estate v Uiagar Singh [1966] EA 564

Classification of Leases

1)        A lease for a fixed period

2)        Periodic tenancies: Ss. 106 and 116 ITPA, Ss. 3 and 46 RLA

3)        Tenancy at Will

4)                 Tenancy at Sufferance

5)                 Lease in Possession: term commences from a past date of date of execution.

6)                 Reversionary (or future) lease: period commences on a future date

Implied Covenants In Leases

(Itpa And Rla}

S.108 ITPA; Ss. 53-55 RLA

Tenant’s Covenants

1. Covenant to pay rent

The general rule is that the tenant must- continue to-pay rent during the period of the lease even if the property is destroyed. This is so because a lease is something more than a contractual obligation. It creates an estate which is an interest in land.

There is, however, an exception to payment of rent where the property is destroyed or damaged e.g. by fire, civil commotion-, violation- of any army or of a mob of ether irresistible force. These are occurrences which are not attributable to the tenant's negligence.

Under the RLA, the rent of any part of the rent depending on the nature and extent-of the damage shall be suspended and the rent shall cease to be payable until the property is rendered fit for occupation and use. If it is not so rendered within six months of destruction, then the tenant may terminate the lease upon giving the landlord one month's notice in- Writing.

The ITPA provides-that the tenant may avoid the lease as S000 as the property is destroyed.

2. Duty to pay rates, taxes and other outgoings in respect of the leased premises during the continuance of the lease unless the same are payable exclusively by the landlord.

3. Covenant To Repair

RLA Where whole building or a dwelling house is let unfurnished, the tenant is responsible for both internal and external repairs: S.54 (c) RLA.

Where only part of a building is let or where a dwelling house is leased furnished, the tenant is responsible for internal repairs while the landlord is responsible for external repairs: S.54(d)-RLA.

The RLA refers to keeping a building in repair. Under S. 55, this means keeping it in such a state of repair as that in which a prudent owner might reasonably be expected to keep his property, due allowance being made for the age, character and locality of the building at the commencement of the lease.

 Note: The proviso to S.55 states that there shall not be read into such an agreement an undertaking to put any building into a better state of repair than that in which it was- at the commencement of the lease.

Age: This is-& material fact and the tenant is responsible for keeping the building- in a  reasonably good condition for a building of that age.                                                                                          

Character: A distinction- is- made between a large and-expensive house and; for instance, a small and cheaper house. The standard of repair will vary according to the standard of the house.

Locality:  The standard of repair will also depend on the type of area where the house is situated in (affluent versus slum neighbourhood).

ITPA: Under the ITPA; as-a general rule, the landlord- has no obligation to keep the premises in repair. Instead, the tenant is under an obligation to keep and on termination of the lease to restore the property in as good a condition as it was in at the time of the lease with the exception of changes caused by wear and tear or irresistible force: S. 108 A(m): The effect of these words is to exempt the tenant from liability for damage that is due to the ordinary operation of natural forces, always assuming that the tenant has used the premises in a reasonable manner.

4. Covenant to keep furniture in good condition and to replace lost articles of property

This covenant applies where the premises are let furnished.

The tenant is required to keep the furniture in as good condition as it was at the commencement of the lease with the exception of fair wear and tear. Where articles are lost, destroyed of so damaged as to be beyond repair they must be replaced with articles of equal value.

5. Covenant to permit landlord or his agent with or without workmen at all reasonable times to enter the leased premises and inspect or examine the same.

6. Covenant not to transfer, charge, sub-let or otherwise part with possession of the           leased premises without the landlord's written consent.

This applies- to the RLA only. There is no similar provision under the ITPA, but in practice, Advocates will include such a covenant in leases governed by the ITPA. Under the RLA and ITPA, the landlord's consent shall not be unreasonably withheld. The onus of proving that the consent has been unreasonably withheld lies on the tenant. See: Shanly v Ward [-1913J 29 TL.R. 714.

Landlord's Covenants

1. Capacity S.39 RLA and S.7 ITPA

The landlord has capacity to make the grant.

2. Quiet enjoyment RLA S.53 (a); ITPA S.108A (c)

–        The landlord guarantees that the tenant shall have quiet enjoyment of the property so long as the tenant pays the rent and performs the covenants to be performed on is part.

–        Constitutes the right to exclusive possession. The landlord has no right to intimidate the tenant. He must not e.g. remove property or items or services from the leased premises with the intention of indirectly forcing the tenant to leave.

3. Covenant not to derogate from the grant

S.:13 (b) RLA

–        an extension of the covenant for quiet enjoyment.

–        The landlord must not use or permit to be used any adjoining or neighbouring land of which he is the proprietor in any way which would render the leased premises unfit for the purpose for which they were leased.

–        The landlord must not frustrate the use of the land for the purpose for which it was let. See:

Birmingham Dubley &_District Banking Co. v. Ross [1883] 38 Ch D.295

Bowen LJ. stated, “A grantee having given a thing with one hand, is not to take away the means of enjoying it with the other"

Aldin v. Latimer [1894] Ch. 437

A landlord leased certain premises to a tenant for the purpose of carrying out the business of a timber merchant. He then put up buildings on adjoining land in such a way as to interrupt the free flow of air to the drying sheds.

Held: The landlord's assignees were liable in damages for the breach of the implied covenant not to derogate from the grant.         .

4. Covenant that premises are fit for habitation RLA S.53 (d)

This is contained in the RLA only. It applies where a dwelling house, flat or room is let furnished.

5. Duty to repair - RLA S. 53(c)

It applies where only part of a building is let or where a dwelling house is leased furnished. Here, the landlord is responsible for external repairs. The landlord is required to keep the roof, main wall, main drains and common passages in repair. There is no similar provision under the ITPA.

6. Duty to disclose material defects - ITP A S.108 (A) (a) only

The landlord is under an obligation to disclose any material defect in the property of which the tenant is not aware and would not, with ordinary care, discover. The defect should however, be one within the landlord's knowledge

7. Possession ITPA S.108(A) (b)

The landlord will put the tenant into possession of the property. There is no similar provision under the RLA

Assignment Of Leases

ITPA Ss. 108 (B) (i) and 109; RLA Ss. 85 (I) and 91 (RLA)

Definition of Assignment

 –  The transfer of the whole of the interest of a lessor or lessee under a lease to a third party.

–  Takes place when a third party takes the identical term which the lessor or lessee holds in respect of a leasehold interest.

Assignor – the person who makes the assignment.

Assignee – the person to whom an assignment is made.

The whole interest must be transferred. The lessor must assign the whole of his interest including the reversion. The lessee must assign the whole of his term. If there is a remainder of the term, the whole remainder must be assigned. There would be no assignment if the assignor were to reserve a part of the term for himself

An assignee can therefore be:

Ø  A third party to whom the lessor passes the reversion; or

Ø  A third party to whom the lessee passes the term of years.

Privity of Contract and Privity of Estate

Assignment raises the question as to whether or not covenants or agreements; implied or expressed in a lease retain their effect after the original 1ease has been assigned to a third y by either the lessor or lessee.

The answer to the above question is determined by the common law doctrines of privity contract and privity of estate See

Souza Figuerido v. Panagopolous [1959] fA 756

This case discusses privity of contract and privity of estate.

Privity of Contract

It exists between people who have entered into contractual relations - i.e. where there is an agreement between the parties, e.g. between Landlord and Tenant, Tenant and Sub­tenant.

Under the doctrine of privity of contract, only the contracting. parties can sue or be sued on the contract.

Privity of Estate

It exists between two people, one of whom holds the reversion while the other holds the original term or remainder of the term created by the lease. It exists e.g. between: Landlord and Tenant's Assignee

In the absence of an assignment, the law states that there is both privity of contract and of estate.

At common law, privity of contract between a landlord and tenant subsists even after assignment of their respective interests. Liabilities do not pass to the assignee.

The ITPA repeats the common law rule. It provides that upon assignment (transfer) the Lessor or Lessee shall not cease to be subject to any of the liabilities imposed upon him by the lease. See:

S. 108- (B)(j) - which allows a Lessee to assign his interest.

S. 109           - which allows a Lessor to assign his interest.

The RLA, however, reverses the Common Law and ITPA rule. S 91 provides that a transferee From a lessor or from a lessee shall possess all the rights and be subject to all the liabilities of the lessor of lessee which are expressed OF implied in the lease or which arise thereunder further, the transferor shal1 cease to be under any obligation or possessed of any rights in respect of the lease. S.85(1) allows- a lessee to transfer his interest. The word used is "transfer", not "assignment.”

Proviso Nothing in this section shall affect the rights Of liabilities of the lessor or lessee in respect of a breach of any of the agreements expressed or implied in the lease which occurred before the transfer.

When the Lessee (Tenant) assigns his lease, he loses privity of estate between-him and the Lessor (Landlord) or the Landlord's Assignee. Under privity of estate the Lessee (Tenant} cannot therefore be sued by the Landlord or Landlord's Assignee for breaches committed by the Tenant's Assignee after assignment.

By the same token, the Tenant's Assignee cannot sue the Landlord or the Landlord's Assignee for breaches committed before the assignment.

The problem is that the Tenant remains liable, under privity of contract, for breaches occurring after he has assigned his interest.

Therefore, it is advisable in practice for the assignor to obtain a Deed of Indemnity or Covenant for Indemnity from the assignee regarding future breaches which may occur after assignment.

It has been-argued that the ITP A and RLA are not clear as to the passing of burdens and benefits, i.e. liabilities and rights, to the assignee.

An argument has been forward that the English common law doctrine of privity of estate applies. This is to the effect that only covenants that touch and concern the land will pass their burden or benefit to the assignee. These are distinguished from personal covenants which do not pass their burden or benefit.

What is a covenant that touches and concerns the land?

This is-a covenant that relates to-the subject matter of the land. Examples of such covenants are as follows:

Lessee

1) To pay rent

2) To pay rates and taxes unless the same are payable exclusively by the

landlord/lessor

3) To repair the premises

4) To use the premises as a private dwelling house only

5} Not to assign, sublet or otherwise part with possession of the leased premises without the landlord's consent

Lessor

1. To renew the lease

2. To supply the premises with water and electricity

3. Not to- serve a notice to quit for a given period unless the landlord requires the

      premises for his own use.                                           .

Personal Covenants

These are covenants that do not touch and concern the land examples:

Lessee

1. To pay an annual sum to a third party

2. To pay rates in respect of land other than the leased premises

3. To repair and replace moveable goods as opposed to fixtures

The problem is that the Tenant remains liable, under privity of contract, for breaches occurring after he has assigned his interest

Therefore, it is advisable in practice for the assignor to obtain a Deed of Indemnity or Covenant for indemnity from the assignee regarding future breaches which may occur after assignment.

It has been argued that the ITP A and RLA are not clear as to the passing of burdens  and benefits, i.e. liabilities and rights, to the assignee.

An argument has been forward that the English common law doctrine of privity of estate applies. This is to the effect that only covenants that touch and concern the land will pass their bur-d-en Of benefit to the assignee. These are distinguished from personal covenants which do not pass their burden or benefit.

What is a covenant that touches and concerns the land?

This is-a covenant that relates to-the subject matter of the laFt6, Examples of such covenants are as follows:

Lessee

1) To pay rent

2) To pay rates and taxes unless the same are payable exclusively by the  landlord/lessor

3) To repair the premises

4) To use the premises as a private dwelling house only

5) Not to assign, sublet or otherwise part with possession of the leased premises without the landlord's consent

Lessor

1. To renew the lease

2. To supply the premises with water and electricity

3. Not to serve a notice to quit for a given period unless the landlord requires the

            premises for his own use.       

Personal Covenants

These are covenants that do not touch and concern the land: Examples:

Lessee

1. To pay an annual sum to a third party

2. To pay rates in respect of land other than the leased premises

3. To repair and replace moveable goods as opposed to fixtures

Lessor

1) To pay a sum of money to the Lessee upon determination of the lease for goods

      that are not fixtures.

2) To pay a sum of money to the lessee upon determination of the lease unless a

      new lease is granted.

3) To allow the tenant to display advertising signs on other premises.

Personal covenants are not binding on the assignee as they do not touch and concern the land.­

Summary and Conclusion

Under common law, if covenants touch and concern land, the benefits and burdens pass to the assignee under privity of estate. However, under privity of contract, liabilities do not pass and the assignor remains-liable.

Under equity, provided that the covenants touch and concern land, both benefits and burdens-are assignable.

In Kenya the ITPA adopts the common law position, while the RLA adopts the equity position.

Passing of benefits (rights) and burdens (liabilities) upon assignment is determined by privity of contract and privity of estate.

Common Law and ITPA

Privity of contract subsists- between Landlord and Tenant after assignment. The party assigning (assignor) continues to be subject to liabilities under the lease after assignment.

RLA/Equity

The rights and liabilities pas-s-o Therefore the party assigning (assignor) ceases to be subject to any liabilities under the lease. Exception: Will be liable for breaches before transfer.

Suing:

Privity of Estate:         Assignor cannot be sued after assignment

Privity of Contract:     Assignor remains liable and can be sued after assignment

Practical Solution:       Assignor obtains Deed of Indemnity or Covenant for Indemnity from Assignee regarding future breaches after assignment.

Procedure: Leases

The first step is usually taken by the Landlord when he advertises his premises for letting. Alternatively, he may engage an estate agent to advertise on his behalf

Where a prospective tenant is satisfied with the premises, the Landlord will inform his Advocate that he has agreed to grant a. Lease to the Tenant and would like the Advocate to act for him (the Landlord)

Generally in practice, the Landlord's Advocate emits- the Lease. Since the Landlord retains the reversion when he grants a lease, it is for him to indicate what he is willing to grant and on what terms: See Rule 24 of the Advocates Remuneration Order Cap 16)

Particulars required by the Landlord's Advocate

To enable the Landlord's Advocate to draft the Lease document he requires the following particulars:

1. Full names and address of the Landlord

2. Full names and address of the Tenant

3. Name and-address of the Advocate or the Tenant, if any.

4. Particulars of the property and whereabouts of documents of title.

5. If a portion of a building is being leased, the Landlord's Advocate requires an

architect's plan for registration under the RDA

6. Term of Lease and date of commencement

7. Rent: Amount and mode of payment - monthly, quarterly, etc. and whether payable in advance or arrears and on what days of the month.

8. Covenants to be performed and observed by both parties.

9. Whether there is any option. for renewal and if so, its terms.

Option to renew Clause

Usually, the Landlord agrees to grant a further term containing the same covenants and agreements as those contained in the Lease except for the clause regarding the option to renew.

The inclusion of this exception is desirable to exclude any possibility of a perpetual right of renewal. The clause should state the mode of exercising the option to renew It should also define the time limit within which the option is to be exercised The clause should also contain a formula for determining the rent.

An option is defined as "an irrevocable offer which; if properly exercised, becomes a binding contract."

 Once the Landlord's Advocate has obtained the necessary particulars, he wil1 write to the Tenant or his Advocate, if any, informing him that he understands that the parties have agreed to the proposed lease, that he has been instructed by the Landlord and that he will shortly submit a draft lease to the Tenant or his Advocate for approval.

The terms of any correspondence between the parties or their Advocates are important. This is because a contract may have to be implied in the correspondence if the draft lease is not approved or signed.

The party seeking to specifically enforce the contract may have to rely on the correspondence as constituting the contract, note or memorandum required under S.3 (3) of the Law of Contract Act (Cap 23).

Duties of Landlord's Advocate

After receiving instructions from the Landlord and communicating with the Tenant or his Advocate, the Landlord's Advocate's duties wi1l be to:

1. Obtain Documents of Title
2. Draft the Lease
3. Send it to the Landlord for approval if necessary
4. Send it to the Tenant or his Advocate for approval
5. Make any necessary amendments proposed by the Tenant or his Advocate. Note: the Landlord must approve these.
6. Engross-the document.
7. Prepare and send a completion statement to the Tenant's Advocate requesting for funds for stamp duty and registration fees
8. Obtain relevant Consents and Clearance Certificates
9. Forward the engrossed Lease to the Tenant or his Advocate for execution and attestation as required
10. Have the Lease executed by the Landlord and attested as- required
11. Stamp the document and lodge it for registration
12. Obtain-any fees, complete filing and dispose of documents as instructed.
13. The Advocate may also be required at a later stage to draft a Renewal of lease
14. He may also be required to approve an Instrument/Deed of Surrender

Duties of the Tenant's Advocate

1. Investigation of the Landlord's title to determine:

Ø  Whether the Landlord has capacity to grant the Lease

Ø  Whether there are any encumbrances

Ø  What consents are required

Ø  Whether there are any restrictions or provisions regarding the user of the premises and therefore to determine whether the land can be used for the purposes intended by the tenant

2. Approval of the draft lease

3. Ensure that the necessary consents- have been- obtained by Landlord

4. Obtain the necessary funds for stamp duty and registration fees from the Tenant

5. Have-the Lease duly executed by the Tenant and attested-as required

6. Obtain his fees, complete filing and dispose of documents as directed

7. Later: Approval of Renewal of Lease.                                  

8. Later: Drafting of Instrument of Surrender, engrossing and having it executed by Tenant, stamping and registering it.

TERMINATION OF LEASES

1. By expiry or effluxion of time

2. By notice -i.e. notice to quit

3. By forfeiture

4. By surrender - may be express or implied

Express Surrender:

GLA - A written instrument duly executed and registered is required.

RTA and RLA - Express surrender may be affected in two ways:

            i)          By a written instrument duly executed- and registered; or

            ii)         By writing the word "surrender" on the Lease and signing against it.

In practice, instruments of surrender are drawn-by Advocates and are then signed, attested and registered.

Implied Surrender occurs where:

i)          The tenant vacates the premises- with the consent- of the Landlord: or

ii)         The Landlord grants to the Tenant a new lease which commences during the subsistence of the original lease; or

iii)        The landlord grants to a third party a lease with the consent of the Tenant.

5. By merger: This is where the reversion and the term of the lease are both vested in         the tenant.

7. By frustration: Ss. 53{e)RLA; S I08(B)-(e) ITPA

The Rent Acts

The purpose of these Acts is to protect tenants from being exploited by Landlords and also against eviction. The tenancies to which these Acts apply cannot be terminated under the normal rules relating to leases. The two Acts are as follows:

RENT RESTRICTION ACT (CAP 296) –Residential Premises

The RRA protects tenants of domestic premises i.e. residential dwellings. S. 3(1) thereof states that this Act will apply to all dwelling houses except:

a) excepted dwelling houses ( excepted by Minister)

b) dwelling houses which are let on service tenancies­

c) Dwelling houses having a standard rent exceeding 2,500/= per month whether   furnished or unfurnished.

Under the RRA, a tenant cannot be evicted without an order of the Rent Tribunal

LANDLORD & TENANT (SHOPS, HOTELS AND CATERING ESTABLISHMENTS) ACT (CAP 301)- Commercial Premises­

The L & T Act protects tenants of business premises. S.2 thereof provides that a controlled tenancy means a tenancy of a shop, hotel Of catering establishment:

a) Which has not been reduced to writing; or

b) Which is in writing and which:

i)          is for a period not exceeding 5 years; or

ii)         contains a provision for termination otherwise than for a breach of covenant within 5 years from the commencement thereof: or

iii)        relates to premises which the Government may specify as controlled.