THE LAW OF PROPERTY

Property law is concerned with the bundle of rights a person may have on
land. Such rights may be exclusive or otherwise.
Property law defines the range of functions a person may exercise in a
given situation at a given time. It confers proprietary rights and imposes
obligations on owners/holders of land.
Land includes physical strata, water all things growing on it, buildings or
other things permanently annexed on the land.

POSSESSION AND OWNERSHIP

Whereas ownership signifies title or a bundle of rights exercisable with
respect to the subject matter, possession is the mere right to hold and
may be actual or constructive.
Ownership confers proprietary rights.
However, in certain circumstances, possession may confer the right to
use.
Ownership of land may take three forms:
1. Sole ownership
2. Joint ownership
3. Common ownership

SOLE OWNERSHIP
The land in question is owned one person who exercises all the rights in
relation to it

JOINT OWNERSHIP
A situation where property is owned two or more persons. It enjoys all the
characteristics of a single owner. Proprietors have no individual shares in
the property. Joint ownership is characterised four unities namely:
Unity of title
All the persons derive title from the same title
Unity of possession
All the persons are entitled to each and every part of the land. They have
the same rights to use any part of the land.
Unity of interest
All the owners own a similar interest in nature, extend and duration
Unity of time
The interest of the owners commences at the same time

Jus Accresscendi / Right of ownership

Means that when a proprietor or owner dies, his interest vests in the
survivors. In a joint ownership, interest in the property cannot be disposed
off will or intestacy. At common law, if joint owners die together, the
younger is deemed to have survived the older

COMMON OWNERSHIP
This is the ownership of separate but undivided shares in the land. It does
not confer the right of survivorship and a common owner can transfer his
share to others with consent of the other owners. Common ownership
terminates when the land is sold or partitioned

INTEREST IN LAND
It may take any of the three forms:
1. Estate
2. Servitude
3. Encumberances

ESTATE IN LAND
An estate in land may be freehold or leasehold.

FREEHOLD ESTATE
Confers a bundle of rights exercisable for an indefinite duration. It may be
acquired through inheritance or otherwise. The rights it confers can be
transmitted to future generations.
Freehold estates include;
Free simple
Free tail
Absolute proprietorship

1. FEE SIMPLE
This is the largest freehold estate a person can have on land at common
law. It confers the largest quantum of rights. It confers unrestricted right
to use, misuse and to dispose. In the event of death, the rights are
transmitted to the person entitled to inherit the estate failing which it
escheats to the state. No conditions are attached as to its inheritance.
Holder can dispose it by deed or will, wholly or in part, conditionally or
unconditionally.
The holder of a fee simple is entitled to commit waste on the land. Waste
may be:
a) Ameliorating waste – Consists of acts which improve the value of land.
b) Permissive waste – Consists of acts not detrimental to land
c) Voluntary waste – Consists of acts detrimental to land
d) Equitable waste – This is wanton destruction of land.
Creation of Fee Simple
This estate may be created by:
i. Grant: - if it is transferred from one person to another
ii. Inheritance: – if inherited from a deceased
iii. Enfranchisement; – applies to agricultural leases where the
government on expiration of the term of the lease, converts it to a
freehold estate

2. FEE TAIL
A freehold estate which confers a life interest on the holder. Descends
only to specified persons.
Confers the right to determine the person or persons entitled to inherit.
The estate is generally created inheritance
3. ABSOLUTE PROPRIETORSHIP
Created Sections 27 & 28 of The Registered Land Act CAP 300.
Section 27 provides inter alia upon registration, the owner acquires all the
rights and privileges associated with such ownership. These rights include
right to use, misuse or dispose. The rights of the registered holder cannot
be defeated unless as provided for the Act. The person to whom the land
is registered becomes the absolute owner to the exclusion of all others.
This estate is illustrated the decision in Obiero V. Opiyo. The registration
terminates all customary rights previously exercisable on the land.
Creation of Absolute Proprietorship
i. Registration after Adjudication
ii. Conversion from other registers
iii. Transfer
iv. Inheritance
v. Consolidation

EXAMPLES OF FEE SIMPLE

• Life Estate
An estate which lasts for the life of the grantee and is created inheritance.
Death of the grantee terminates his interest
• Estate Pur Autre Vie
An estate in the life of another. It lasts for the life of that other person and
lapses on his death. May be created Express Grant or Assignment
It is a freehold estate but reverts to the grantor when the person dies.
Person on whose life the state is measured is the Cesqui que.
LEASEHOLD ESTATE (Tenancy)
Lease refers to a transaction which creates the relationship of landlord
and tenant between the grantor and grantee. The formal document which
this is done is a lease.
Leasehold is the quantum of rights which a lease grants to the lease. It is
a secondary interest in land derived from a primary interest. Confers upon
the leasee / tenant exclusive possession of another land.

CHARACTERISTICS OF TENANCIES/ LEASES

1. Exclusive possession
A tenancy confers upon the grantee/ tenant the right to hold the interest
to the exclusion of all others. Means that no other person has an equal
right to it. It was so held in Helcht V. Morgan.
2. Defined premises
The premises to which the tenancy or lease refers must be defined or
ascertained. It must be identifiable reference to the agreement. It was
held in Heptulla V. Thakore.
3. Certain period
A lease must commence at and exist for a certain period or for a period
capable of being ascertained. It was so held in Marshalls V. Berridge
4. Scope of grant or Quantum of Rights
The bundle of rights conferred a lease must be definite or capable of
being defined.
The leasee must know the rights exercisable under the lease.
TYPES OF TENANCIES OR LEASES
•Fixed Tenancy
A tenancy created for a fixed duration. Its commencement and
termination must be specified. Such a lease determines when the duration
expires
• Periodic tenancy
Tenancy/ lease which continues indefinitely from a period to period e.g. 1
year. Such a lease may be express or implied. Its duration is not specified
and it may arise if a fixed period tenant remains in possession and
continues to pay rent.
• Tenancy at will
Here the tenant occupies premises on the terms that either party may
determine the relationship at any time. The tenancy terminates in the
event of death of either party or committing an act inconsistent with the
tenancy.
• Tenancy at sufferance
Arises whenever a fixed period tenancy holds over or remains occupation
without the landlord’s consent. This tenancy is created operation of law. If
landlord accepts rent, it becomes a periodic tenancy. However, the tenant
may be ejected at any time without notice.
.Service tenancy
Created to enable the tenant perform a particular service. The occupation
is necessary for performance of the service. however the tenancy
terminates on determination of employment.

OBLIGATIONS OF THE PARTIES

A tenancy/ lease imposes upon the parties certain legally binding
obligations.

DUTIES OF LANDLORD/LESSOR/GRANTOR:
1. Duty not to derogate from the grant
He must not do anything inconsistent with the tenancy or lease. These are
acts likely to render the premises unfit for the purpose for which they
were rented.
2. Duty to ensure quiet enjoyment
The landlord, his servants and agents must not interfere with the tenant’s
enjoyment of the premises. Tenant is entitled to peaceful occupation
without unlawful interference or interruption.
3. Duty to grant premises fit for purposes Landlord must ensure that the
premises let are fit for the particular purpose for which it is let.
4. Duty to suspend or adjust rent
If the premises or part thereof is destroyed/ damaged without the tenants
negligence rendering it wholly or partially unfit for occupation or use, the
lessor is bound to suspend or adjust rent depending on the nature of
damage until the premises are rendered fit for use or occupation.
5. Duty to repair
As a general rule, it is the duty of the lessor to repair the roof, main walls,
main drains, common passages and installations. This duty is statutory if
only part of a building is let
6. Duty to put the tenant in possession
The lessor is bound to hand over to the lessee, the mains which enable
him enter into occupation.

DUTIES OF TENANT/LESSEE/GRANTEE:
1. Duty To Pay the Rent Reserved
It is obligation of lessee to pay the rent as agreed. Such rent is payable
irrespective of occupation.
2. Duty To Pay Rates and Taxes
Lessee is bound to pay all rates and taxes except where the landlord is
under statutory obligation to pay.
3. Duty Not to Commit Waste
Lessee is duty bound not to commit waste i.e. he must not do anything
which reduces the value of the premises. Fixed term tenants are liable for
voluntary and permissive waste.
4. Duty not to transfer, sublet or part with possession
As a general rule, the lessee must not transfer, sublease or charge the
premises without the lessor’s written permission.
5. Duty To Permit Landlord to View the Premises
It is the duty of the lessee to enable the landlord appreciate the condition
of the leased premises. The obligation is generally implied where the
lessor is bound to repair the premises.
6. Duty To Make Reparation for Any Breach
The lessee is bound to repair and make good any defect or breach of
agreement for which he is to blame. Reparation must be made within
reasonable time as may be specified a notice given the lessor.
7. Duty To Make Material Disclosure
The lessee is bound to inform the lessor of any external interference third
parties or of any action he is about to take which affects the value of the
premises
8. Duty Not to Erect Fixtures
The lessee must not, without the lessor’s consent erect any permanent
structures on the property. However, structures erected for agricultural
purposes are permissible
9. Duty To Put rthe Landlord in Possession
It is the lessee’s duty on expiration of the lease to put the lessor in
possession of the leased premises.
If a tenant is guilty of breach of terms of the lease e.g non-payment of
rent, landlord has an action in damages or may distress the tenant
pursuant to the provisions of the Distress for Rent Act3.

TERMINATION OF TENANCIES/LEASES
A tenancy agreement may terminate in the following ways:
• By Notice
Applicable where the tenancy is for a fixed duration or where either party
desires to terminate the leases before the duration expires. The notice
must sufficiently indicate the parties’ intention to terminate the lease.
• Lapse of Time/ Expiration of Time
A fixed period tenancy terminates on expiration of the duration
• Forfeiture
This is the right of the lessor to re-enter the premises and there-
prematurely determine the lease in the event of certain breaches. The
lessor may do so pursuant to a forfeiture clause or in accordance with the
provisions of the ITPA or Registered Land Act e.g. If the lessee is bankrupt
or insolvent or upon the winding up of the company
• Surrender
The giving up the tenant, to the landlord, of the leased premises. Express
surrender must be made in a prescribed form
• Merger
Under the ITPA and Registered Land Act, a lease determines if the lessee
or some other person becomes entitled to the property as of right. A
merger must be express.
• Enlargement or Conversion
A lease determines if it is converted into some other interest e.g freehold
in accordance with the law.
• Frustration
As a general rule the doctrine of frustration does not apply lease
agreements. However, a lease is terminable frustration if the property or
part therefore is rendered unusable.
• Disclaimer
This is the right of the lessee/tenant to disclaim the lease. He can only do
so if authorised statute. On doing so the lease terminates.
A Lease differs from a Licence in that traditionally, licence is permission
given the occupier of land which without creating an interest in the land
allows the licensee to do some act which would otherwise be a trespass.
A licence does not confer the right to exclusive possession of the land. It is
a mere permission a party to another to enter upon the licensor’s land. It
does not require any writing or registration and is not transferrable

SERVITUDES
These are rights in alieno solo ie a right conferring a power on another’s
land for the benefit of the right holder or his estate.
At common law, servitudes include:
(i) Easements
(ii) Profit apprendre
(iii) Restrictive covenants

EASEMENTS
right attached to a parcel of land which allows the proprietor of the land
either
To use the land of another in a particular manner
To restrict its use to a particular extent.
An easement may be positive or negative. It is positive if it authorises the
use of ones’ land in a particular way. It is negative if is restricts that other
in the use of his land.
CHARACTERISTICS OF AN EASEMENT
1) There must be a dominant and a servient tenement
There can be easement properly so-called only if there be both a servient
and a dominant tenement. An easement must be connected with the
dominant tenement.
2) Dominant and servient tenement must be owned/ occupied different
persons
This is because an owner cannot have an easement over his land. It has
been observed that in order to obtain an easement over land, you must
not be the possessor of it for you cannot have the land itself and also an
easement over it.
3) Easement must accommodate the dominant Tenement
What this requires is that the right accommodates and serves the
dominant tenement and is reasonably necessary for the better enjoyment
of that tenement.

4) Easement must be capable of forming the subject matter of the grant

This characteristic means that the easement must be capable of being
granted deed hence there must be:
A capable grantor
Capable grantee
The right must be sufficiently definite
Right must be of a nature capable of being granted.
An easement differs from a licence in that it is a proprietory interest
attached to the land. It differs from a lease in that it does not confer
possessory rights over the land.

CREATION OF EASEMENTS
An easement may be acquired in the following ways:
1. Express Grant
A situation where the grantor expressly confers the right to the grantee in
prescribed form which must specify the nature of the interest, duration
and other conditions or limitations.
2. Statute
An easement may be granted an Act of Parliament to facilitate the
discharge of a statutory obligation.
3. Prescription
Under the Limitation of Actions Act, 20 years of continuous use of
another’s land grants an easement to the user. The use must have been
uninterrupted.

TERMINATION OF EASEMENTS
1. Lapse Of Time
Under the Registered Land Act, an easement terminates on expiration of
the prescribed duration.
2. Occurrence Of an Event
The Registrar of lands is emto cancel the registration of an easement on
application the party affected any breach of its terms
3. Unity Of Seisin
Acquisition of full ownership of both the dominant and servient tenements
the grantee or some other person destroys the easement.
4. Merger Of Interest
Under the Registered Land Act, an easement terminates if the dominant
and servient tenement are vested in the same person provided the
tenements are combined under one title and registered as such.
6. Release or Abandonment
A grantee may executing a deed abandon the easement to the grantor
there terminating the same.
7. Judicial Discharge
Under Section 98 of the Registered Land Act, the court is emon
application an interested party to order termination of an easement if
satisfied that there is reasonable cause to do so.

PROFIT APPRENDRE
The right to take something off another’s land.
It is the right to go on the land of another to take particular substance
from that land, whether the soil or products of the soil. A profit enables
the grantee to take something capable of ownership from grantor’s land.
If a profit is enjoyed others, it is referred to as profit in common/common.
If it is enjoyed to the exclusion of others it is a several profit. If a profit is
attached to the land, it is said to be a profit apportionment.
A profit may be created or acquired by:
1. Express grant
2. Prescription law
May be terminated by:
1. Release/Abandonment
2. Unity of Seisin

RESTRICTIVE COVENANT
An agreement which a proprietor or land owner undertakes to restrict the
use of his land in a particular manner for the benefit of some other land.
Such an agreement may arise between two landlords or tenants owning or
occupying adjoining properties. The covenants are created agreements
which are registerable under the law.
They are terminable mutual consent.

ENCUMBERANCES
These are rights in alieno solo which constitute burdens on the property.
They are generally of a temporal character. Encumbrances are either
mortgages or charges.

MORTGAGES
In the words of Lindley J in Santley V. Wilde (1859) a mortgage is a
conveyance of land or assignment of chattels as security for payment of a
debt or the discharge of some other obligation for which it is given

CHARACTERISTICS OF A MORTGAGE
Conveyance of the title to the mortgage
A proviso for reconveyance on payment
The right of redemption
The law relating to mortgages and charges in Kenya is contained in the
Indian Transfer of Property Act, Registered Land Act and Equitable
Mortgages Act.
Under Registered Land act, A Charge is an interest in land as a security for
the payment of money/ monies or the fulfilment of any condition.

TYPES OF MORTGAGES
The ITPA recognises the following types of mortgages:
1. Simple mortgage
Involves delivering possession of the mortgaged property during
mortgage transactionwhereby the borrower binds himself to pay the
mortgagee and agrees that in the event of non-repayment, the mortgagee
shall have the rights to sell the property and the proceeds applied in the
payment of the mortgaged money.
2. Mortgage conditional sale
Is a mortgage transaction whereby borrower ostensibly sells mortgaged
property to the mortgagee on condition that the event of default, the sale
becomes absolute or in the event of payment the sale becomes void.
3. Usufructuary mortgage
The lender (mortgagee) takes possession of the mortgaged property and
uses the proceeds to repay himself.
4. English Mortgage
The borrower binds himself to repay the mortgaged money on a specific
date and transfers the mortgaged property to the mortgagee subject to a
re-transfer upon repayment of the mortgaged money.
5. Anomalous Mortgage
Created Section 98 of the ITPA. The rights of the parties and other terms
and conditions of the transaction are determined the mortgaged
instrument.
6. Equitable Mortgage
Created the Equitable Mortgages Act CAP 291. The borrower deposits his
title deed with the mortgagee but without delivering possession of the
mortgaged property.

DUTIES OF MORTGAGORS AND CHARGORS

1. To repay the principal sum and interest
2. To pay all taxes and rates
3. To honour previous obligations if the charge or mortgage is a
subsequent transaction
4. To keep the premises in repair
5. To insure the property in the joint names of the parties
6. To farm according to the rules of good husbandry in case of agricultural
land.
7. To honour the terms of the lease if the property is a lease.
These obligations terminate upon the discharge of the charge or mortgage
or on cancellation of the transaction the registrar
REMEDIES OF MORTGAGES AND CHARGES
1. Foreclosure
A Court order which denies the borrower the right to redeem his security.
The remedy may be availed the court after the mortgage debt is due but
before redemption. It is provided for section 67 of the ITPA
2. Appointment Of Receiver
A mortgagee/ chargee is emto appoint a receiver to take over the security
given the borrower to facilitate payment of the debt. Exercisable in
circumstances in which the lender has the right foreclose. A charge may
appoint a receiver if there is a default which continues for one month or if
the borrower does not honour a demand notice in three months. The
amount recovered the receiver must be applied to pay rates and taxes,
prior mortgages, any commission payable, insurance premium, interest
payable under charge/mortgage
3. Statutory Power of Sale
The power of mortgagee or charge to sell the mortgaged property in the
event of default the borrower. This right is exercisable if:
a) There is no contrary provision in the mortgaged instrument
b) Borrower’s signature has been attested to an advocate
c) Notice to pay the amount has been served upon the borrower who has
not responded in three months time or interest has in arrears for
2months. The monies realised must be applied to pay prior
encumberances, expenses of the sale, mortgage or charge, subsequent
encumberances if any.
4. Consolidation
The equitable right of a chargee holding several charges to insist that all
be redeemed together. This right is only exercisable if:
i. The mortgages had been executed the same borrower
ii. The charges are held the same chargee
iii. There has been default in respect to all of them
iv. The securities are still in existence
v. The right to consolidate is expressly reserved the instruments
5. Suit On Personal Covenant
The right of a chargee or mortgagee to sue the borrower in the event of
default. It is an action for recovery of the amount lent. The right is
exercisable if: –
i. The mortgagee/ borrower has executed a personal covenant to repay
ii. Security provided is destroyed a wrongful act or default the borrower
iii. The borrower has refused to deliver possession to a mortgagee who is
so entitled.

RIGHT OF REDEMPTION
This is the right of the borrower to recover his security from the
mortgagee/chargee. The right is recognised common law and equity.
During the contractual period of the transaction, the borrower has the
legal right to redeem paying the amount due at any time.
If the amount is not paid within the contractual period, the borrower loses
the legal right to redeem but has an equitable right to redeem which must
be exercised within a reasonable time as it is conferred equity. The
equitable right to redeem is only exercisable after the legal right to
redeem is exhausted.
In law the borrower has unrestricted equitable right to redeem his
security. Any provision in a mortgage or charge purporting to deny the
borrower the equitable right to redeem is void. This right must not be
subjected to any conditions the charge or mortgagee.
However, the equitable right to redeem is lost when the property is sold or
a foreclosing order is made the court. The right of redemption is
exercisable by
Any person having an interest in the property
An executor or a signee
A guarantor
A judgement creditor
The equitable right to redeem must be distinguished from equity of
redemption which is the residual interest in property conveyed to the
chargee or mortgagee which is retained the borrower. This interest is
extinguished on foreclosure.
The equity of redemption enables the borrower exercise equitable right to
redeem.

INTELLECTUAL PROPERTY RIGHTS

These are rights awarded society to individuals or organizations rincipally
over ccreative works. They give the creator the right to prevent other
from making unauthorized use of their property for a limited period of
time.