LAND LAW 1: PROPERTY THEORY

Dr Busalile Jack Mwimali

1. The Concept of Land as Property

Introduction
Land law is the form of law that deals with the rights to use, alienate, or exclude others
from land. In many jurisdictions, these species of property are referred to as real estate
or real property, as distinct from personal property. Land use agreements, including
renting, are an important intersection of property and contract law. Encumbrance on
the land rights of one, such as an easement, may constitute the land rights of another.
Mineral rights and water rights are closely linked and often interrelated with the
concept of land.

Land rights are such a basic form of law that they develop even where there is no state
to enforce them; for example, squatting, the occupation of land without ownership, is
a globally ubiquitous and important form of land use.

Land as Property
The centrality of land in the process of production means that land remains the major
means of production as compared to the other factors. In the agricultural based
economy, land assumes a greater significance because land is the main stay of our
economy notwithstanding the emphasis placed on the drive towards industrialisation.
Consequently all transactions that take place in relation to land are bound to be more
complex than with other forms of property. There is hence the need to formulate an
appropriate framework within which the obligations that arise are dealt with.

Another characteristic that is peculiar to land as a form of property is its scarcity.

Increasing population exerts pressures on land with various consequences resulting.
Guaranteeing land or access thereto for the people becomes almost impossible. This

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means that land cannot just be treated like other species of property that one is
conversant with.

Inelasticity is another factor. It is the case that one cannot increase supply of land from
what one has, it does not expand and so its availability in terms of supply remains
virtually constant. That complicates matters and hence the need for regulation.

Land unlike other types of properties has the capacity to accommodate various
interests either simultaneously/concurrently or consecutively. Various interests may
be conferred to different people without there being any conflict whatsoever. For
example where there is a grant of leasehold interest carved out of a freehold. Again,
there can be an easement such as a right of pathway in the same land and also a profit
a prendre. Similarly, two persons can hold the same land as co-owners either as joint
tenant or tenants in common. Land can also entertain simultaneous or successive
interests such as life interest and a remainder thereto.

The fact that land is attached to each other creates or gives rise to certain mutual rights
and obligations, notable among such rights would be the right of support that my
property which is adjacent to yours expects and is entitled to, those rights and
obligations arise and they are enforceable at the behest of whichever party has been
robbed. That places a complex scenario and there is a legal framework for determining
what obligations will ensue by reason of these obligations.

The fact that land is indestructible makes it unique in a sense. Although land is
amenable to waste; it is virtually incapable of being completely destroyed.

There is also the aspect relating to its ability to be conceptualised both in vertical and
horizontal terms. The significance attached to this is understood when one considers
the notion of property which means that contrary to traditional belief, it is possible to
have within the same physical solum property that is suspended on top of 3rd or 2nd
floor owned by different people that is made possible through the concept of sectional
property unlike in the past where a title document could only issue from a given area
this was the traditional notion. It is now possible to have several titles depending on
how many flats there are in one piece of land. There are certain things that have to be

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necessarily shared so there are rules that will regulate those arrangements; Facilities
such as parking, pools etc.

On account of the foregoing characteristics which are associated with land as a form
of property, there are certain important issues which arise. These issues relate to:

(i) The manner in which land can be commoditized so that it is placed at par with
any other forms of property that can be availed in the market; and

(ii) The issue as to who exercises control over it.

In the context of development and administration of property rights, the first aspect
can be construed as relating purely of the choice between operating an unregistered
land system on the one hand, and operating a recorded or registered land system on
the other. This boils down to no more than a comparative perspective of the merits
and demerits of these two systems.

The second aspect relating to control is related to the first one in the sense that it is the
entity to which such responsibility falls that will ultimately regulate all manner of
transactions or activities which may be undertaken in relation to land.

In terms of regulations, one has to think about terms of levels that are created, the
duties and obligations that arise and their enforcement so that their involvement leads
as back to the noted quality of land as a form of property.

The Idea of Property Ownership

This part explores philosophical foundation and underpinnings of the concept of
property ownership in its broadest form possible. We also seek out to analyse the
fundamental elements and the essential particulars which are associated with the idea
of property ownership and property as a concept. We further examine various rights
duties and obligations attached to property ownership and identify the various
conceptual bases of the notion of property and its ownership. We examine various
mechanisms that are being designed to regulate issues touching on property rights.
Ultimately we shall come up with the idea to formulate some appraisal or some sought of
evaluation of the traditional arguments usually presented for or against the institution of
property ownership.

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This classification of property law and property theory is to purely facilitate
appreciation of the various issues designated in land law. The corpus of what goes
into land law is broad and the rules need a practical as well as a theoretical approach.
The idea was to look at the foundation of property law and the other component was
meant to take one beyond property transaction. What it enables us to do and how it
does that. Property transaction was baptised property theory. The approach adopted
here is to give reference points for each topic that we cover.

Fundamental Legal Conceptions

Property
Property in the abstract sense means ownership. It is derived from Latin proprius
meaning one’s own. It is the relationship between an item and the holder of certain
rights over it.

The best way is to define property as a power relation; the relationship that a person
has with an item; the nexus with the land. It may also be viewed as a stake that one
has in the item.

Property may also be defined as a relationship of socially approved control of an item

(Social legitimacy attaching to the claim in question [Gray & Gray core text p.27 etc.
Seq.])

(i) It is relative;

(ii) It has gradation – the gradation may even vary over time e.g. Law of
adverse possession, proprietary estoppel etc.)

(iii) It falls from the maximum to a minimum value – From a fee simple to a
licence. The power of one over property is not absolute; there may be
gradation from a maximum value to a minimum value (i.e. from Fee
simple, leasehold, easements etc.).

The Concept of a Right

The general theory is that it becomes open for the subjects to rebel in the face of
unreasonable promulgations issuing from the sovereign if the sovereign acts in excess
of his authority. This clarifies the issue or the concept of a right and how it emerges up
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to the point where we want to relate it to issues of property. There is always a duty
imposed invariably a duty as a correlation to a right in the scenario that we have just seen
whereas the subjects are guaranteed their rights under conditions of life in civil society
they are also duty bound to reciprocate to the extent that they cannot act as they had
previously done. They are under a duty to obey. To every right attaches a correlative duty
and that can manifest itself in a number of ways. In terms of general theory the idea of a
right stands out as one of the most important notions in terms of explaining legal relations.
Rights have duties which flow from them in the words of Lord Lloyds work titled the idea
of law

As soon as a legal system arrives at the stage of development when it can yield to
juristic analysis it will be found that the concepts of rights and duties form a pivotal
point in the structure of the legal machinery by which the system is enabled to perform
its social function.

Those two raise the idea of rights and duties.

In the socialist systems the rights vests in corporate entities. We are talking of those
legal rights that are capable of enforcement. The fundamental difference between
these rights and other rights is that only those rights that have been accepted and
agreed on as laws and written as a code that guides the society are the rights that we
are talking about and not rights that emanate from our moral inclinations.

The ultimate question still remains what is a right? It has been suggested that a right
signifies an affirmative claim in favour of one as against another in respect of a given
situation, object or thing in which the right holder has an interest. This signification of
that affirmative claim in favour of one against another in relation to a given situation
in which the right holder has an interest is called a right.

It is important within any legal system from the standpoint of the definition because
it is from the standpoint of such an understanding that we would then proceed to
impose duties, obligations, create a number of requirements and impose them on
others in the end the idea of a right boils down to whatever statement one can make
about the quantum or range of activities which one will be permitted to do within the
society or which a given society will permit its members as individuals or members to

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engage in or execute under any specified conditions or situations. Those permitted
will have to be defined by rules of law which regulate the conduct of those members
of the society. So that if we were to look at it from the standpoint that one has an
affirmative claim over something it would necessarily imply that the person holds it
as a right to act in a certain way in relation to a given situation. If it is given as of right
there is a duty on the rest of the members of the society not to impeach the execution
of the engaging of such a person in those permitted activities and there should be a
sanction of sorts to punish or discourage those who are bent on infringing on those
rights to the beneficiary

Rights Concept in the context of civil society

The concept of the right is very much connected to the emergence of the civil society.
The antecedent that is the position that was holding before the emergence of that civil
society is much different. The preponderant condition is that there was this order that
everything became yours not because you owned it, developed it but because you
could actually get it by force. In the absence of such order there was chaos and
everybody was for himself and if one wanted to assert their claim for any property
one had to go out there and sort it out with force. Sometimes individuals were pitted
against one another in order to survive one had to withstand that condition. What
developed could be described as rights. It was essentially your might that translated
into what you ended up owning.

One lived in constant fear of losing out to the mightier parties and the conditions of
living were pitiful. Life according to Thomas Hobbes in his Discourse became
impossible. Hobbes argues that it was very difficult for one to survive and life was
cruel and brutish. Might = Right this was the state of life. Life was not conducive to
people being productive because people lived under the threat of the absence of law
and order.

The choice of salvation vis-à-vis extinction arises from these conditions. People’s
collective might so that each of them would forego the exercise of their own might in
exchange of authority but instead each of them guaranteed some property rights that
their property would not be taken away and that they would enjoy the fruits of their

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labour and the Social Contract arrived and from henceforth there was a three way
transaction. Each individual was to renounce the use of individual might on condition
that everyone did the same and with collective members of the society and the
individual would not be outside this society and then ultimately the collective power
of might would be ceded to exercise the same to the better of all.

Social contract achieved to bring peace to all men and guaranteed them a number of
benefits which were by far much more attractive. It is because of those dividends that
the state of chaos was overcome. Expectation of peace and property was achieved by
members of that society sitting together and reasoning and opting together out of
chaos via the social contract.

The social contract is the of civil society and is predicated on a very simple
understanding that the sovereign, the ultimate authority to whom all individuals cede
their powers of might is a custodian of the society’s collective interests as it were. What
is tolerated is only that which society accepts as right and there is an enforcing
machinery to ensure that no one is promoted or looked upon with any favour. Society
would define values and give them clothing of legitimacy and these would be deemed
to be law giving rights.

How much power do you give to the sovereign – the sovereign is understood to enjoy
powers for this to work. The sovereign alone is in charge of promulgating the law so
his word shall be law. The effect of ceding those powers to the sovereign was to enable
him exercise the same for the benefit of the society and he can have the power to
punish so that any promulgations emanating from the sovereign will be obeyed. The
sovereign will issue orders to the subject and those orders are backed by coercive
powers in the sense that you do not choose to obey or disobey the law. If you
disobeyed you incur the wrath of punishment. Members of the society do not expect
the sovereign to act unreasonably. Reasonableness of sovereign powers is a condition.

The Concept of Ownership

1.4.4.1. Jurisprudential foundations of property law/theories property
law
 First Occupancy (First Possession)

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First occupancy theory reflects the familiar concept of first-in-time: the first person to
take occupancy or possession of something owns it. This theory is a fundamental part
of property law today, often blended with other theories. One major drawback of this
theory is that while it helps explain how property rights evolved, it does not
adequately justify the existence of private property.

 Labour-Desert Theory
The labour-desert theory posits that people are entitled to the property that is
produced by their labour. There are several notable objections to this theory, one of
which is that the theory assumes an infinite supply of natural resources.

The labour theory of property or labour theory of appropriation or labour theory of

ownership or labour theory of entitlement is a natural law theory that holds that
property originally comes about by the exertion of labour upon natural resources. It
is also called the principle of first appropriation or the homestead principle.

In his Second Treatise on Government, the philosopher John Locke asked by what right
an individual can claim to own one part of the world, when, according to the Bible,
God gave the world to all humanity in common. He answered that persons own
themselves and therefore their own labour. When a person works, that labour enters
into the object. Thus, the object becomes the property of that person.

Locke argued in support of individual property rights as "natural rights". Following

the argument the fruits of one's labour are one's own because one worked for it.
Furthermore the labourer must also hold a natural property right in the resource itself
because - as Locke believes - exclusive ownership was immediately necessary for
production.

Jean-Jacques Rousseau later criticized this second step in Discourse on Inequality,

where he effectively argues that the natural right argument does not extend to
resources that one did not create. Both philosophers hold that the relation between
labour and ownership pertains only to property that was un-owned before such
labour took place.

 Utilitarianism

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Traditional Theory - Under the traditional utilitarian theory, property exists to
maximize the overall happiness or “utility” of all citizens. Accordingly, property
rights are allocated and defined in the manner that best promotes the general welfare
of society (The Bentham theory of utilitarianism).

Law and Economics Approach - The law and economics approach incorporates economic
principles into utilitarian theory. This view essentially assumes that human happiness
can be measured in dollars. Under this view, private property exists to maximize the
overall wealth of society.

Critics question the assumption that social value can be appropriately measured only
by examining one’s willingness to pay.

 Liberty or Civil Republican Theory

Liberty theory argues that the ownership of private property is necessary for
democratic self-government. However, the influence of liberty theory has waned due
to changing economic, political, and social conditions.

 Personhood Theory
Personhood theory justifies private property as essential to the full development of
the individual. Under this approach, some items are seen as so closely connected to a
person’s emotional and psychological well-being that they virtually become part of
the person, thereby justifying broad property rights over such items.

1.4.4.2. Incidents or Characteristics of Ownership

An owner has the right to possess the object or thing owned the fact that he has parted
with such an object or thing either by voluntarily divesting himself of the same or by
being wrongfully being deprived does not derogate from the fact that he still remains
the owner of such an object or thing with an immediate right to possession even in
situations where the person gives out or loans out the object or thing to a friend the
position remains that such a person retains the reversionary interest which is
protected under the law and which ranks in his favour. That protection can be
enforced e.g. the form of taking out a suit or legal action for damages occasion to the
interests so protected or by the procurement of an injunction to stop any interference
with the interests protected.

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Most important characteristic of ownership is the owner’s right to possess the thing
or object that is the subject matter of ownership and not even temporarily parting with
the object denies him that right.

The owner has also the right to use and enjoyment of the object or thing owned and
in exercise of such right is free to determine or decide how the object or thing will be
used and by whom. The owner is also entitled the receipt of income or some other
benefits arising from the use of such object or thing. The right to possession essentially
amounts to some form of liberty, the freedom conferred on the owner to determine
from time to time how the object or thing subject of ownership can apply.

The rider to that is that whereas the owner has the liberty to use and abuse the thing,
its application or who will use the object or thing as he pleases, is predicated on the
premise that the enjoyment will be within the confinements of the law. No rules or
regulations are infringed so one has the liberty to apply his object or property as he
pleases.

Other people are under a duty not to use or interfere with the rights conferred on the
owner. The owner also has the right not only of use but also of abuse of the object or
thing subject of ownership in the exercise of his rights. He has rights to consume
alienate dispose the thing/object as he pleases freely without any impediments.

A non-owner even in situations where he is in possession is incapable of legitimately

exercising such powers on the grounds that the non-owner has no good title to the
object/thing. This is exemplified in the latin maxim of ‘nemo dat quod non habet.’

Rights of use and abuse are peculiar to the owner alone. The owner can in death
alienate his property as he pleases through a will. It is a characteristic of ownership
that it is indeterminate in duration as against non-owners vis-à-vis that of a non-
owners. Whereas the interests of non-owners are in a temporary position, it is not
indeterminate that the owner’s interests in the thing or object can in theory last for
time on end. It is perpetual and not amenable to be determined by any set time frame.

Ownership is residual meaning that rights are attendant and are capable of being
granted further to other persons without necessarily derogating from the owner’s

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right as such for instance leases being given out by owners but with a residual claim
to ultimate return to the owner. Owner’s rights are not compromised.

Owner’s rights cannot be lost and are inexhaustible. It is possible to give multiple
further grants to others in relationship to that thing.

Ownership has also the characteristic that it may be absolute or restricted. Absolute
gives room for exercise of the right for free and exclusive enjoyment including the
right to alter or destroy the thing owned at will; provided that the same is done within
the confines of the law. As long as it is coupled with terms and conditions of exclusive
rights of enjoyment of rights attached to the ownership. Ownership gives rights to
enjoyment.

The Interplay between Rights Concept of Property & That

of Ownership
Rights, property and ownership are interrelated. Rights issues arise from claims to
property and ownership. These three concepts are very much intertwined. A right
relates to particular things i.e. property which are capable of being owned so that the
notion of ownership is a necessary corollary of the term property as well as the rights
attaching thereto. Of course rights must attach to or be enjoined by specific people
who are entitled to claim them so that one of the characteristics is that it inheres in a
specific person who is entitled to claim such a right. The existence of a right
presupposes that there exist other persons on whom the right imposes relative duty
or obligation. A further characteristic is that there is forbearance which is the subject
matter of the right in question. There must also exist some object of that right whether
it is some person or something to which that particular right refers. There must exist
some entitlement involved which essentially explains or offers the very reasons for
which the right in question is being invested in the honour of the person entitled to
enjoy it.

All these characteristics of a right complete the picture wherever we talk of property
and in all matters pertaining to the assertion of the ownership of property.

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Ownership denotes a relationship between a person and a particular thing whereby
the owner is considered to have a free hand to the exclusive enjoyment or use of such
thing or object so that the idea of ownership tends to invite talks of exclusive
enjoyment of that particular thing or object. Possession of a thing or object is reserved
to the right owner and as a necessary complement to that the owner also has the right
to recover possession or enjoyment of such thing or property in the event that he has
been wrongfully deprived of that which he owns. The rightful owner enjoys the right
to hold and recover possession of the property as against all others and this then is the
essential ingredient of the idea of ownership, to the extent that ownership consists in
a complex of exclusionary rights which can be exercised against the entire world. The
rights attendants thereto are necessarily designated as rights in rem.

Land Rights
Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights
are the fundamental normative rules about what is allowed of people or owed to
people, according to some legal system, social convention, or ethical theory.

Land rights refer to the inalienable ability of individuals to obtain, utilise, and possess
land at their discretion, as long as their activities on the land do not impede on other
individuals’ rights. This is not to be confused with access to land, which allows
individuals the use of land in an economic sense (i.e. farming). Instead, land rights
address the ownership of land which provides security and increases human
capabilities. When a person only has access to land, they are in constant threat of
expulsion depending on the choices of the land owner, which limits financial stability.

Land rights are an integral part of Land Laws, as they socially enforce groups of
individuals’ rights to own land in concurrence with the land laws of a nation. Land
Law addresses the legal mandates set forth by a country in regards to land ownership,
while land rights refer to the social acceptance of land ownership. Although the law
may advocate for equal access to land, land rights in certain countries and cultures
may hinder a group’s right to actually own land. Laws are important, but they must
be backed up by cultural tradition and social acceptance. Therefore, laws concerning
land ownership and land rights of a country must be in agreement.

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1.4.6.1. Proprietary Right
In law, the rights over a thing may be proprietary or only personal rights. The essence of
proprietary rights is that one has an entitlement over the item itself or rather, the thing
is infected with a person’s rights; a right in rem.

There can also be a personal right (right in personum) enforceable against the person
and not his successor in title or a third party.

Proprietary rights bind the purchaser and successors in title while personal property
binds the individual who transacted on it.

1.4.6.2. Legal and Equitable Rights

Interest in land law refers to a right in or over land. It may comprise legal right or
equitable interests. Legal rights/interests are those which comply fully with all
provisions of law. For example, it is required that all interest in land must be in writing
and most other need to be registered. If therefore one has complied with these
conditions, he acquires legal rights/interests.

The fact that one is a legal title-holder of land does not mean he/she is the only person
with an interest in the land. There may be another person having equitable interest in
the same parcel of land.

Equitable rights/interests are those where the legal title is conferred to one individual
or group of individuals but with beneficial interest being vested on others. The owner
of the legal estate is a trustee (whether expressed or implied) for the beneficiary. The
trustee here holds land for the benefit of another person (the beneficiary). The trustee
holds a legal interest and the beneficiary holds an equitable interest.

Equitable interests may be those which are not formally recognised by the law but
which equity has intervened to protect. One may for instance enter into a contract to
purchase land or may have sold land but may not have not yet received payment. The
land is therefore held in trust since the legal requirement is not fully complied with.

Equitable interest thus refers to an interest in, or ownership of, property that is
recognized by equity but not by the common law. A beneficiary under a trust has an

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equitable interest. Any disposal of an equitable interest (e.g. a sale) must be in writing.
Some equitable interests in land must be registered or they will be lost.

Originally equitable rights (e.g. a trust, or the equity of redemption under a mortgage)
were enforceable against the person with a legal right over property in question. Later,
however, those who were given the property by the holder of the legal interests took
it subject to equitable interests; later still, anyone who bought property knowing of
the equitable interests was bound by them. In the developed law, everyone takes
property subject to equitable interests except those who bought it without the
knowledge and who could not have known of the equitable interests (this is the
doctrine of notice – Where an innocent purchaser for value and without notice takes
property free from pre-existing equitable claims).

The rules surrounding equitable interests are rather complicated and technical. The
point, however, is that, interests, be they legal or equitable, will often clash. In some
circumstances, a person with an equitable interest may have a better claim to land
than the legal title holder. It is therefore important to know exactly what interests
certain people have in a property before you enter into an agreement over it.

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2. Definition of Land
Introduction
Land does not simply mean something physical. The word ‘hereditament’, implies the
nature of the right involved in the ownership of land. It gives a clue as to what the
study of land law is all about—not the land (the soil, the grass, the trees, the buildings),
but the rights that people may have in land. Thus, land is to be re-classified as
including corporeal and incorporeal hereditaments. Ownership of land may equally
include ownership of a house and ownership of a right of way over someone else’s
house (an incorporeal hereditament).

The Meaning of Land

Under common law, the definition of land was contained in certain legal maxims the
principles behind which courts reiterated as the basis of what land is.

The first maxim: Cuius est solum, eius est usque ad coelum et ad inferos means ‘for whoever
owns the soil, it is theirs all the way up to Heaven and down to Hell.’ This maxim
often appears in the shorter form ‘Cuius est solum eius est usque ad coelum,’ omitting ‘et
ad inferos’.

The maxim represents the principle of property law, stating that property holders
have rights not only to the soil in the plot of land itself, but also to the air above and
(in the broader formulation) the ground below.

In modern law, this principle is still accepted in limited form, and the rights are
divided into air rights above and subsurface rights below. Thus, the history of this
maxim is discussed by Lord Wilberforce in the case of Commissioner for Railways v.
Valuer-General, [1974] AC 328 at 351).

Lord Coke in his Commentary on Littleton in 1628 also observed that: “The earth hath
in law a great extent upwards, not only of water … but of ayre and all other things
even up to the heaven.”

The Owner’s Rights to Airspace

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In practice, the cases do not literally apply this maxim. The courts do not restrain each
and every encroachment of airspace, because an action in trespass is based on an
interference with the possession of land. Some encroachments of airspace are not seen
to interfere with the possession of the land.

Who may bring proceedings

In Rodrigues v. Ufton (1894) 20 VLR 539, it was held that an owner of real estate can
only bring an action to restrain trespass to airspace where either:

• The owner has rights to minerals on or under the surface;

• The owner is in possession; or

• The owner’s reversionary interest will be affected.

It follows that in the absence of the owner’s reversionary interest being adversely
affected by any trespass to airspace, only the lessee of tenanted property can complain
about a trespass to airspace.

Permanent encroachments
The court has shown a greater willingness to find a trespass where there is a
permanent encroachment of the airspace above the land than in other situations. For
instance, in Kelsen v Imperial Tobacco Co Limited [1957] 2 QB 334, a permanent
encroachment by a sign protruding from the building on one property into the
airspace of the adjoining property was held to be a trespass. In so holding, McNair J
relied on the decision of Romer J in Gifford v Dent [1926] WN 336 where the judge
had taken the view that a sign which was erected on the wall above the ground floor
premises and which projected some four feet, eight inches (i.e. 1.4 metres) from the
wall constituted a trespass over the plaintiff’s airspace.

Other cases of permanent encroachment include: Wandsworth District Board of

Works v. United Telephone Co Limited (1884) 13 QBD 904, where a case of wires
swinging across a neighbour’s property was held to be a trespass; and Lemmon v
Webb [1895] AC 1 where the House of Lords held that an owner may cut branches and
roots of a tree which encroach on their land from an adjoining property, (subject to
tree preservation orders and other requirements of local councils and shires).

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 Temporary encroachments into airspace
In Pickering v Rudd (1815) 171 ER 70, Lord Ellenborough expressed the view that a
person in an air balloon passing over a property would not be a trespasser. His
Lordship at 71 observed that: “I do not think it is a trespass to interfere with the
column of air super incumbent on the close.”

In Clifton v Bury (1887) 4 TLR 8, the English Court declined to restrain the firing of
bullets that passed over the plaintiff’s land at a height of 75 feet (i.e. 22.5 metres).

In Davies v Bennison (1927) 22 Tas LR 52, on the other hand, the Tasmanian Supreme
Court held that a plaintiff has sufficient rights to the airspace above his land to prevent
his neighbour from shooting his cat while it was sitting on the roof of his shed.

It is suggested that Davies v Bennison is reconcilable with Pickering v Rudd and

Clifton v Bury because of the proximity of the cat to the structure on the land. It would
appear that where the intrusion into the airspace occurs near the surface of the land,
the court is more likely to determine that there has been a trespass than in the situation
where the intrusion into the airspace occurs at a significant height above the surface.

There is some uncertainty in relation to aircraft flying over land. Insofar as the courts
are prepared to extend Lord Ellenborough’s reasoning in Pickering v Rudd to aircraft
cases, aircraft flying above the surface of land will not normally be regarded as a
trespass unless traversing the land near to the surface.

Because the matter is not free from doubt and because of the increasing importance of
aircraft in our modern society, in some countries such as England and Australia,
Parliament has enacted legislation to ensure that aircraft flying over private land are
not automatically liable for trespass to that land (See generally the Damage by Aircraft
Act 1952 (NSW), and the Damage by Aircraft Act 1999 (Cth)). The legislation provides
that as long as an aircraft traverses a property at a reasonable height, having regard to
all the facts and circumstances, there will be no liability for trespass.

On the other hand, as a legislative trade off, there is strict liability should the aircraft
cause damage to personal property such as would occur if the aircraft crashed into the

17
land or into a structure erected on the land (Bernstein of Leigh (Baron) v Skyviews &
General Limited).

In Bernstein of Leigh (Baron) v Skyviews & General Limited [1978] QB 479, the
plaintiff was the owner and resident of a country property in Kent, England. The
defendants operated a business that involved the taking of aerial photographs of
properties. The defendants took aerial photographs of the plaintiff’s property from a
height of several hundred feet. The plaintiff objected to this taking place without his
permission and commenced proceedings. In particular he contended that the
defendants were not entitled to rely on the statutory defences available under the
United Kingdom civil aviation legislation on the grounds that it did not permit the
use of airspace for the purposes of photography. Griffiths J rejected the submission
that the plaintiff’s rights in the airspace, continued to an unlimited height. He state at
486–488:
It may be a sound and practical rule to regard any incursion into airspace at a height
which may interfere with the ordinary user of the land as a trespass rather than a
nuisance. Adjoining owners then know where they stand; they have no right to erect
structures overhanging or passing over their neighbours’ land and there is no room for
argument whether they are thereby causing damage or annoyance to their neighbours
about which there may be much room for argument and uncertainty. But wholly
different considerations arise when considering the passage of aircraft at a height, which
in no way affects the user of the land …
His Honour applied the test of ‘what is necessary for the ordinary use and enjoyment
of the land and the structures on it?’ and determined that the defendant’s aircraft did
not infringe any rights in the plaintiff’s airspace and thus, no trespass was committed.

Temporary encroachments into airspace—the building

cases
In Woollerton & Wilson Limited v Richard Costain Limited [1970] 1 WLR 411 the
English Court of Appeal was asked to restrain a building contractor from allowing a
tower crane to encroach upon the airspace of the plaintiff’s land. When the crane was
in operation, and also when it was not in use and the wind was blowing in a certain
direction, the jib of the crane encroached upon the plaintiff’s airspace at a height of 15
m above the roof level.

18
The building contractor admitted the trespass but pointed out that the building would
be substantially delayed as it had been planned around the use of the tower crane.
There was evidence that the building contractors had offered the plaintiffs a
substantial sum for the right to encroach on the airspace of the plaintiffs.

The English Court of Appeal held that there was a trespass to the plaintiff’s airspace,
but, in the exercise of its discretion, the court delayed the operation of the injunction
for sufficient time to allow the builder to complete the building.

The court so exercised its discretion because the building contractor had offered the
plaintiffs a substantial sum of money as compensation and by reason of the fact that
there was no earlier precedent to forewarn the building contractor of the possibility
that it would be restrained from completing the building at a time when the work was
in progress. The court was satisfied that the building contractor had not acted in
flagrant disregard of the plaintiff’s rights.

The Woollerton case has since been applied in Australia by the Full Court of the
Queensland Supreme Court in Graham v K.D. Morris & Sons Limited [1974] Qd R 1.
There, it was held that a builder should be restrained immediately from allowing a
crane on the building site to encroach the airspace of neighbouring land. This builder
acted in flagrant disregard of the plaintiff’s rights and was of course on notice of the
precedent set by the Woollerton case.

In LJP Investments Pty Limited v Howard Chia Investments Pty Limited (1989) 24
NSWLR 490, Hodgson J, as he then was, held that the defendant was liable for trespass
to airspace because it allowed scaffolding to encroach over the plaintiff’s land during
the course of construction of a wall along the boundary between the defendant’s land
and the plaintiff’s land.

In this case, the defendant was the owner of a property on which a substantial
commercial development was being constructed. The defendant instructed its builder
to erect scaffolding, which encroached over the plaintiff’s land from a height of about
4.5 metres above ground level. The scaffolding extended about 16 metres along the
boundary and protruded about 1.5 metres into the airspace above the plaintiff’s
property. Senior Counsel for the defendant relied on Bernstein of Leigh (Baron) v

19
Skyviews & General Limited. He argued that an encroachment into airspace is only a
trespass if it occurs at a height and in a manner that interferes with the occupier’s use
of the land. Hodgson J at 495 held:

If the defendant’s submission is to the effect that entry into airspace is a trespass only
if it occurs at a height and in a manner, which actually interferes with the occupier’s
actual use of land at the time, then I think it is incorrect.

In my view, the rule stated in Bernstein of Leigh (Baron) v Skyviews & General
Limited by Griffiths J was rather that a trespass occurred only if the incursion was at
a height, which may interfere with the ordinary user of land, or is into airspace, which
is necessary for the ordinary use and enjoyment of the land and structures upon it: see
(at 486, 488). It was held that in that case that there was no trespass by an aeroplane
flying many hundreds of feet above the land.

On the other hand, in Woollerton and Wilson Limited v Richard Costain Limited and
Graham v K D Morris and Sons Pty Limited, the incursions of crane jibs at heights of
the order of 50 feet above the plaintiff’s roof were treated as trespasses. Hodgson J, at
495–6, went on to observe:

I think the relevant test is not whether the incursion actually interferes with the
occupier’s actual use of land at the time, but rather whether it is of a nature and at a
height which may interfere with any ordinary uses of the land, which the occupier
may see fit to undertake. Such a rule has the advantages stated by Griffiths J in
Bernstein of Leigh (Baron) v Skyviews & General Limited.

In passing, Hodgson J stated that the weight of authority was against the view
adopted in Pickering v Rudd that the incursion into the plaintiff’s airspace of an
overhanging sign was a nuisance rather than a trespass.

In Bendal Pty Limited v Mirvac Pty Limited (1991) 23 NSWLR 464, Bryson J was faced
with a case where a defendant builder used protective mesh screens that encroached
into the plaintiff’s airspace from a high-rise building site. His Honour held that the
encroachment was a trespass. Bryson J distinguished this case at 470 as follows:

20
At some point for which no precise definition is available, activities above the surface
of land cease to have sufficiently close relationship with it to be protected by the law
of trespass, the modern example being furnished by the decision of Griffiths J in
Bernstein of Leigh (Baron) v Skyviews & General Limited [1978] QB 479 relating to over
flying aircraft.

The activities complained of in the present cases are supported by the ground surface.
They have a clear relation to ownership of the right to control the ground surface and
they do not involve the kind of problems presented by overflying aircraft for trespass
law. Hodgson J expressed the matter this way:

I think the relevant test is not whether the incursion actually interfered with the
occupier’s actually use of the land at the time, but rather whether it is of a nature and
at a height which may interfere with any ordinary uses of the land which the occupier
may see fit to undertake.

The defendants’ own activities demonstrate that putting building works in position at
a great height, including screens and the operation of cranes are ordinary uses of land,
which an occupier may see fit to undertake, because the defendants are undertaking
them themselves in relation to the second defendant’s land and at the height
complained of. It is not relevant to the ambit of protection of trespass law that the
plaintiff himself is not at present undertaking corresponding activities and does not
intend to in the near future. The defendant’s own conduct demonstrates the advantage
of owning the land and controlling such activities.

In my view, the defendant’s conduct complained of relating to the screen is a

continuing trespass and the defendant’s own evidence makes it in every way plain
that the defendants intend that it should continue and that it is highly probable that it
will continue unless restrained by injunction.

Bryson J noted that the defendant could have carried out the building working in a
manner that did not involve such a serious encroachment, although this would have
involved greater cost for the builder. At 472, his Honour observed:

21
The defendants have adopted techniques, which involve encroachment, although
other techniques, which would not have involved such serious encroachment, but
would have involved a greater cost, were available to them and still are available…

The resource represented by the plaintiff’s airspace is not available like natural
resources of the countryside for them to take as they find suitable, any more than they
could count on using other people’s bricks or other resources. At the heart of the
litigation is a very simple question of using or not using other people’s property, and
this disqualifies the defendants from any real claim to consideration of hardships
which they have incurred.

Although his Honour ordered that the defendant be restrained from allowing the
protective mesh screens to encroach the plaintiff’s airspace, His Honour declined to
restrain the defendant’s encroachment, constituted as what is known as
‘weathervaning’. In this respect, his Honour held at 467:

Another encroachment related to the crane is referred to as weathervaning. When the

crane is not under load it is allowed to act as a weathervane, and it moves with the
wind with the jib at an elevation of 45 degrees at which it has a radius expressed
horizontally of about 23 metres. The free movement of the crane would carry it from
time to time, in an uncontrolled way over the plaintiff’s building.

I do not take a very grave view of the encroachment constituted by allowing the crane
to weathervane. Any encroachment has, I suppose, some discernable risk but the free
movement of the crane has relatively small discernable risk, particularly when
compared with the use of the crane to pass loads over the plaintiff’s building. There is
a good practical reason for allowing the crane to weathervane, as this minimises the
stresses produced on the tower and the crane structure generally by wind.

2.3.4.1. Enforcement
If there is a trespass, an occupier (or an owner not in occupation insofar as the
reversionary interest is affected) can:

• Exercise a right of self-help by for example, evicting a trespasser or by removing

an encroaching wall: Traian v Ware [1957] VR 200;

22
 • Claim damages for the loss suffered by the plaintiff. Sometimes it will be possible
for the plaintiff to recover restitutionary damages based on the benefit to the
defendant by reason of the trespass or exemplary damages by way of
punishment of the defendant. See generally LJP Investments v Howard Chia
Investments (No 2) (1990) 24 NSWLR 499.

• Seek an injunction: Woollerton & Wilson Limited v Richard Costain Limited

[1970] 1 WLR 411; Bendal Pty Limited v Mirvac Pty Limited (1991) 23 NSWLR
464.

The Owner’s Rights to Minerals on or under the Surface

A mineral is anything capable of being mined. At common law, the surface owner’s
rights extend downwards sufficiently to permit the extraction of minerals. In the
absence of any express or implied limitation of rights, an owner of land, at common
law is entitled to the subsoil, ‘cuius est solum, eius est usque ad coelum et ad infernos’, and
to the minerals therein: Wade v NSW Rutile Mining Co Pty Limited (1969) 121 CLR
177.

It is however possible for a person other than the owner of the land to own minerals
on or under the land.

A severance of minerals from the rest of the land may be affected by:

• A Crown grant itself by way of a reservation of the minerals to the Crown; or

• An assurance or reservation contained in an instrument operating between the

owner of the land and another person.

The reservation of minerals implies the existence of a right to mine them, where such
a right is not specifically reserved: Borys v Canadian Pacific Railways [1953] AC 217.

2.3.5.1. The royal minerals

Even in the absence of an express reservation, the royal minerals (ie gold and silver)
are vested in the Crown at common law. The royal minerals do not pass from the
Crown unless specifically stated: Woolley v Attorney General of Victoria (1877) 2
App. Cas. 163; Attorney General v Great Cobar Copper Mining Co (1900) 21 NSWR
351.

23
In Kenya, the Mining Act provides in section 4 that:
All unextracted minerals (other than common minerals) under or upon any land are
vested in the Government, subject to any rights in respect thereof which, by or under
this Act or any other written law, have been or are granted, or recognized as being
vested, in any other person.
The Mining Act defines minerals to be:
All minerals and mineral substances, other than mineral oil as defined in the Mineral
Oil Act, and may be precious metals, precious stones or non-precious minerals, but save
for the purposes of Part V of this Act and of the Mining (Safety) Regulations, does not
include clay, murram, limestone, sandstone or other stone or such other common
mineral substances as the Minister may by notice in the Gazette declare not to be
minerals for the purposes of this Act always provided these do not contain any
precious metal or precious stone in economically workable quantities;
Section 8 of the Mining Act provides:
Nothing in this Act shall be deemed to prevent any citizen of Kenya from taking, subject
to such conditions as may be prescribed, iron, salt or soda from lands (other than lands
within the area of a mining lease or location) from which it has been the custom of the
members of the community to which that citizen belongs to take the same.
All petroleum in a natural state on or below the surface of any land belongs to the
government. Under the s 3 of Petroleum (exploration and Production) Act, Cap 308,
“All petroleum existing in its natural condition in strata lying within Kenya and the
continental shelf is vested in the Government, subject to any rights in respect thereof
which, by or under any other written law, have been or are granted or recognized as
being vested, in any other person.”

Petroleum is defined by s 2 of the Act "petroleum" means mineral oil and includes
crude oil, natural gas and hydrocarbons produced or capable of being produced from
oil shales or tar sands;

The Boundaries with Neighbouring Land

Lines on the surface of the earth define the horizontal boundaries of land. As to the
vertical boundaries, the theoretical starting point is that land usually extends down to
the centre of the earth and up to the sun.

Land, can be limited in height or depth. For instance:

• A transfer may reserve to the transferor all land more than a certain height above
the standard height datum; or

24
 • A government grant may reserve to the state all land more than a certain depth
below the surface.

2.3.6.1. Land Adjoining Tidal Water

A boundary may be a natural one, such as the seashore, or the shore or bank of a lake
or stream. Alternatively, land may have Land adjoining tidal water is bounded by the
mean high water mark, unless the contrary is shown. The contrary can be shown by
showing that the title has a different boundary. If a Crown grant or a transfer describes
land as adjoining tidal water, the natural inference is that the title boundary was the
actual high water mark at the time of the Crown Grant.

The mean high water mark is taken to be at a point of the line of the medium high tide
between the spring and neap, ascertained by taking the average medium tides during
the year: Attorney-General of Southern Nigeria v John Holt & Co (Liverpool) Limited
[1915] AC 599; Government of the State of Penang v Beng Hong Oon [1972] AC 425.

Such a boundary is ambulatory. If the high water mark retreats as a result of natural
accretion, the additional land accrues to the landward title. As Moore stated: ‘Land
described as being bounded by the sea is not excluded from the benefit of accretion
because measurements are also given’.

A boundary may be defined by measurement or by reference to the mean high water

mark. Where tidal water constitutes a boundary, the mean high water mark is taken,
in the absence of any contrary indication in the Crown grant, to be the correct line of
demarcation. Any land below that line is vested in the Crown: Hill v. Lyne (1893) 14
NSWLR 449.

Grants by the government frequently contain a reservation to the state of a strip of

land above high water mark; typically 30.48 metres (i.e. 100 feet). In this situation, the
line is determined by reference to the mean high water mark at the date of the grant.

It follows that where the boundary turns out to be defined by the mean high water
mark or by reference to the mark, and the mark shifts by accretion or erosion, the
boundary shifts.

25
The above rules apply in relation to land under the Real Property Act,
notwithstanding the issue of a certificate of title showing the boundary in a plan:
Verrall v. Nott (1939) 39 SR (NSW) 89. The existence of a certificate of title to land with
a water frontage, even if there is also a certificate of title to the foreshore and sea bed,
does not exclude the doctrine of accretion provided the true boundary is ambulatory:
Butcher v. Lachlan Elder Realty Pty Limited [2002] NSWCA 237.

Where there is an accretion as a result of artificial works, the boundary does not
change: Attorney General, Ex Relatione Hutt River Board, and Hutt River Board v
Leighton [1955] NZLR 750. The boundary does however change where the accretion
is intentionally assisted by artificial means: Verrall v Nott (1939) 39 SR (NSW) 89.

If accretion occurred on the water frontage, title to the additional land would have
accrued in favour of the owner of the waterfront lot. Once reclamation work is
undertaken, however, the boundary to the mean high water mark is fixed, as the title
to reclaimed land is in the owner of the sea bed, and not the frontage.

2.3.6.2. Non-tidal water boundaries

The adjoining owners own the bed of non-tidal water, such as occurs in relation to
part of a river or a creek or a lake that is above tidal reach. The boundary is taken to
be in the middle unless a contrary intention is expressed. This is known as the ad
medium filum rule.

A contrary intention may result in the boundary being defined by measurement or as

being the bank of the non-tidal water.

A Crown grant or a transfer describing land as adjoining non-tidal water is presumed

to include the bed of the water as far as the middle line, subject to any contrary
intention.

This presumption applies to Torrens Title land: Lanyon Pty Limited v Canberra
Washed Sand Pty Limited (1966) 115 CLR 342.

2.3.6.3. Accretion and Erosion in Relation to Non-Tidal Waters

If the boundary turns out to be the middle line and either bank shifts by accretion or
erosion, the boundary shifts proportionately. If the boundary turns out to be the bank,

26
and the bank shifts by accretion or erosion, the boundary shifts to the new position of
the bank.

In relation to rivers, the boundary line may vary by accretion or encroachment:

Hindson v Ashby [1896] 2 Ch 1.

Avulsion, which is where there is a sudden movement in the normal water mark, after
say an earthquake, does not alter the boundary: Humphrey v Burrell [1951] NZLR 262.
This applies in the case of both tidal and non-tidal waters: Thakurain Ritraj Koer v
Thakurain Sarfaraz Koer (1905) 21 TLR 637.

2.3.6.4. The ad medium filum Rule

There is a presumption at law that the bed of a non-tidal stream and the soil of a
highway belong to adjoining owners on each side up to the centre line of the stream
or road. The rule does not apply to tidal waters: Gann v The Free Fishers of Whitsable
(1865) 11 HLC 192; 11 ER 1305.

2.3.6.5. Non-Natural Boundaries

These are imaginary lines described by reference to physical objects or survey marks.
Such lines may be described in loose terms, or with mathematical accuracy as in a
surveyor’s description. Their position may then be plotted on the surface of the land
by survey, and marked with surveyor’s pegs.

Boundaries - Description of Lands

An accurate description of a property that is the subject of a contract of sale is
desirable. The standard form of contract of sale provides, amongst other things, that
no error or misdescription of the property shall avoid the sale.

It is important to determine the subject matter of the sale. The vendor cannot insist on
the purchaser taking, with compensation, a property substantially different from that
which was purchased. On the other hand, purchaser cannot take advantage of a slight
error or misdescription in the contract and purport to rescind: Gardiner v. Orchard
(1910) 10 CLR 722.

Fencing of Boundaries

27
At common law the owners of adjoining properties are not bound to fence, either
against or for the benefit of another: Halsbury’s Laws of England, 4th edn, Vol 4, 385.

An owner of land may however be required to share the cost of constructing and
maintaining an adequate fence between his land and any adjoining land. Owners of
adjoining lands, not divided by a sufficient dividing fence, are liable to join in or
contribute equally to the construction of a dividing fence.

Fixtures and Chattels

The law on fixtures is important for reasons other than determining who should
inherit property, such as pictures fixed to the wall or statues standing in a garden. It
is vitally important to know which objects form part of the land, when land is bought
and sold. This is particularly so when land is sold at auction or repossessed by a
secured lender—that is, a mortgagee, such as a bank or building society—because the
landowner is in arrears on loan repayments.

It can also be relevant for tax purposes to know whether an object forms part of the
land.

Before land is sold, the freehold owner of the property may, of course, fix things to the
property and remove them again as he or she wishes (although different rules apply
to tenants). It is only when land is to be sold, or when you need to know who owns
an object for tax purposes, that the law on fixtures is relevant. When land is sold in the
‘normal’ way—that is, by contract—the parties are free to come to an agreement about
fixtures and fittings.

They generally do this by filling in a list, supplied by their solicitors, in which they
specify exactly what is included in the sale and what is excluded. It is only if this is
not done that the general law on fixtures will be relevant.

There is an old Latin maxim that sums up the law on fixtures: quicquid plantatur solo,
solo cedit, or ‘whatever is fixed to the land becomes part of it’.

In Holland v. Hodgson (1872) LR 7 CP 328, Blackburn J said that whether an object is

a fixture or a chattel depends on two tests:

28
 (i) The degree of annexation;

(ii) The purpose of the annexation.

In explaining the test, Blackburn J went on to say that articles that are only attached to
the land by their weight are not usually considered to be part of the land, unless they
were actually intended to form part of the land. He gave the useful example of a dry-
stone wall—the kind you often see when you are in the countryside. A pile of stones,
randomly stacked in the middle of a field, would not be part of the land—but when
they have been arranged, packed, and formed into a stone wall, then they clearly are
intended to be part of the land. It is for the person claiming that an object is part of the
land to prove it.

On the other hand, an object fixed to the land—however lightly—is initially

considered to be part of the land, unless circumstances indicate that it was always
intended to remain a chattel. In this case, it is for the person claiming that the object is
a chattel to prove it.

In that case, a spinning looms bolted to the floor of the factory of a spinner and stuff
manufacturer were attached other than by their own weight and were therefore held
to be fixtures of the property. The looms were attached to the stone floor of the mill
premises by means of nails driven through holes in the feet of the loom, in some cases
into beams which had been built into the stone, and in other cases into plugs of wood
driven into holes drilled in the stone for that purpose. They could be detached without
serious damage to the flooring.

In explaining the test, Blackburn J went on to say that articles that are only attached to
the land by their weight are not usually considered to be part of the land, unless they
were actually intended to form part of the land.

Thus, an article is fixed by the owner of the fee, though only affixed by bolts and
screws, it is to be considered a part of the land, in all events where the object of setting
up articles is to enhance the value of the premises to which it is annexed for the
purposes to which those premises are applied.

29
In Elitestone v. Morris (1997), Lord Lloyd of Berwick said that he thought the terms
‘fixture’ and ‘chattel’ were confusing ones in the context of a house or building. He
preferred a different approach, using a threefold classification: An object which is
brought onto land may be classified under one of three broad heads. It may be

(i) A chattel;

(ii) A fixture; or

(iii) Part and parcel of the land itself.

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

The chalet in the case fell into category (c) of being part and parcel of the land itself as
do most buildings. It appears that, if an object cannot be removed from the land except
by destruction, it has become part and parcel of the land.

Elitestone v. Morris seems to give more weight again to the ‘degree of annexation’
part of the test, because it is clear that, if objects have become so much part of the land
that they cannot be moved without destroying them, they will be classed as fixtures.

The ‘purpose’ test was also used in Elitestone v. Morris. Because the chalet was
brought onto the land with the intention that it was to stay there permanently, it was
considered a fixture.

Tenant’s fixtures – The rule that if items have been attached to the land in such a way
that the items have become fixtures, they become part of the land and belong to the
landlord is quite unfair. In order to avoid such unfairness, a separate set of rules has
been established concerning tenant’s fixtures.

If a tenant attaches a tenant’s fixture, he or she may remove it at any time during the
tenancy and may remove it at the end of the lease, or even after the tenancy has ended,
provided that he or she is still lawfully in possession. The tenant must make good any
damage done in removing the fixture (Mancetter Developments Ltd v. Garmanson
Ltd [1986]).

30
There are three categories of tenant’s fixture: trade fixtures, ornamental fixtures, and
agricultural fixtures with various rule of treating them after termination of the
tenancy.

The courts are prepared to apply a common-sense approach to the issue whether
something is a fixture or a fitting/chattel.

In Botham v TSB Bank (1996) 73 P & CR D1, the bank was entitled to possession of
the appellant’s house, because he was behind with his mortgage payments. The
appellant claimed that he had transferred the contents of the property, which was a
flat to his parents. The question therefore arose as to which of the contents were
fixtures and so the property of the bank, and which were chattels and so the property
of the parents. The trial judge had divided the 109 items into 9 categories and
considered each of the categories. He found almost all of the items to be fixtures. On
appeal, the Court of Appeal decided that bathroom and kitchen units were fixtures
whereas kitchen white goods, such as refrigerators, were still chattels.

In Chelsea Yacht and Boat Co Ltd v Pope [2001] 2 All ER 409, a houseboat which was
moored by ropes, chain, and an anchor was held to be a chattel.

In Mancetter Developments v. Garmanston Ltd [1986] QB 1212, in this case, the tenant
had installed pipe work and extractor fans in a factory. These were tenant’s fixtures.
When they were removed, large holes were left in the factory walls. The tenant was
liable in damages for failing to make good the holes.

The Owner’s Rights to Things Grown on the Land

A tree or other growing thing is part of the land while it is growing. Once it is severed,
it becomes a chattel.

The exception is a crop, which is replanted from time to time. A crop is a chattel that
belongs to the person who plants it.

A distinction should be drawn in relation to things that grow on land between:

31
 • The annual produce of agricultural labour, which is known as fructus industriales:
Duppa v. Mayo (1669) 1 Wms. Saund. 275; 85 ER 336; Dunne v Ferguson (1832)
Hayes 540; and

• Natural things which grow on land, such as trees, grass and the fruit of fruit
trees, which are known as fructus naturales.

In the case of a contract of sale or will, natural things are considered part of the land
and pass under any transfer or will without being expressly mentioned. They may be
excluded expressly or they may be granted separately from the land: Eastern
Construction Co Limited v. National Trust Co Limited & Schmidt [1914] AC 197.

Right to Things Found on Land

In general, the owner of land is usually taken to have a better Title to lost property
found on the land than does a passer-by. However, where the land is a place to which
the public routinely has access, the situation is less clear.

In Parker v British Airways Board [1982] QB 1004, Mr Parker found a gold bracelet
on the floor at Heathrow Airport. He handed it to a member of staff, with a request
that it be given to him if no-one else claimed it. Instead, British Airways sold the
bracelet and kept the proceeds. Mr Parker brought an action in the County Court,
which awarded him 850 damages. The award was upheld in the Court of Appeal,
which ruled that the owner of the land where the bracelet was found would have to
positively assert its intention to retain title for lost property if it wished to defeat the
claims of the finders.

This case confirms that in such cases the owner of the land can only claim a better title
if he asserts this to be the case to people who use the land.

Statutory Definition of Land

Under the Constitution of Kenya 2010, section 260 defines “land” to include:
The surface of the earth and the subsurface rock;
Any body of water on or under the surface;
Marine waters in the territorial sea and exclusive economic zone;
Natural resources completely contained on or under the surface; and
The air space above the surface.

32
This is the definition that has been adopted in the new land law (in art 2, of both the
Land Act and Land Registration Act state that ‘"land" has the meaning assigned to it
in Article 260 of the Constitution.’)

Indigenous land rights are recognized by international law, as well as the national
legal systems of common law and civil law countries. In common law jurisdictions,
the land rights of indigenous peoples are referred to as aboriginal title. In customary
law jurisdictions, customary land is the predominant form of land ownership.

All land in Kenya belongs to the people of Kenya collectively as a nation, as

communities and as individuals.

The Trustees Act in s 2 defines "land" as including:

Land of any tenure, and mines and minerals, whether or not severed from the surface,
buildings or parts of buildings, and other corporeal hereditaments; also a rent and other
incorporeal hereditaments, and an easement. right, privilege, or benefit in, over, or
derived from land, but not an undivided share in land; and in this definition "mines"
and "minerals" include any strata or seams of minerals or substances in or under any
land, and powers of working and getting them, but not an undivided share thereof; and
"hereditaments" means immovable property which under an intestacy would devolve
on an heir.

33
3. Administration and Regulation of
Property Rights in Kenya
Constitutional Foundation of Property Right
Right to Property
In Article 40, the Constitution protects the right to property. It provides that every
person has the right, either individually or in association with others, to acquire and
own property of any description; and in any part of Kenya.

Parliament cannot enact a law that permits the State or any person to arbitrarily
deprive a person of property of any description or of any interest in, or right over, any
property of any description; or to limit, or in any way restrict the enjoyment of any
right under this Article on the basis of any of the grounds specified or contemplated
in Article 27(4).

The State cannot deprive a person of property of any description, or of any interest in,
or right over, property of any description, unless the deprivation:

(a) Results from an acquisition of land or an interest in land or a conversion of an

interest in land, or title to land, in accordance with Chapter Five; or

(b) Is for a public purpose or in the public interest and is carried out in accordance
with this Constitution and any Act of Parliament that:

(i) Requires prompt payment in full, of just compensation to the person;

and

(ii) Allows any person who has an interest in, or right over, that property a
right of access to a court of law.

Under that Article, provision may be made for compensation to be paid to occupants
in good faith of land compulsorily acquired who may not hold title to the land.

However, the rights under this Article do not extend to any property that has been
found to have been unlawfully acquired.

Administration of Land under the Constitution

34
3.1.2.1. Principles of Land Policy
Under section 60 of the Constitution, land in Kenya must be held, used and managed
in a manner that is equitable, efficient, productive and sustainable. The basic
principles guiding land administration include:

(a) Equitable access to land;

(b) Security of land rights;

(c) Sustainable and productive management of land resources;

(d) Transparent and cost effective administration of land;

(e) Sound conservation and protection of ecologically sensitive areas;

(f) Elimination of gender discrimination in law, customs and practices related to

land and property in land; and

(g) Encouragement of communities to settle land disputes through recognised local

community initiatives consistent with this constitution.

3.1.2.2. Classification of Land

Under article 61, of the Constitution, all land in Kenya belongs to the people of Kenya
collectively as a nation, as communities and as individuals. Land is classified as public,
community or private.

 Public land
This is defined in article 62. It is vested in the county and national government in trust
for the people and is administered on their behalf by the National Land Commission.

Public land cannot be disposed of or otherwise used except in terms of an Act of

Parliament specifying the nature and terms of that disposal or use.

 Community land
This is land vested in and be held by communities identified on the basis of ethnicity,
culture or similar community of interest. It consists of land lawfully registered in the
name of group representatives; land lawfully transferred to a specific community by
any process of law; any other land declared to be community land by an Act of
Parliament; and land that is: (i) lawfully held, managed or used by specific

35
communities as community forests, grazing areas or shrines; (ii) ancestral lands and
lands traditionally occupied by hunter-gatherer communities; or (iii) lawfully held as
trust land by the county governments.

Unregistered community land is held in trust by county governments on behalf of the

communities. This land cannot be disposed of or otherwise used except in terms of
legislation specifying the nature and extent of the rights of members of each
community individually and collectively.

 Private land
Under article 64, this includes: registered land held by any person under any freehold
tenure; under leasehold tenure; and any other land declared private land under an
Act of Parliament.

3.1.2.3. Landholding by Non-Citizens

Under article 65, a non-citizen may hold land only on the basis of leasehold tenure not
exceed ninety-nine years. If a provision of any agreement, deed, conveyance or
document of whatever nature purports to confer on a non-citizen an interest in land
greater than a ninety-nine year lease, the provision shall be regarded as conferring on
the person a ninety-nine year leasehold interest, and no more.

A body corporate is regarded as a citizen only if it is wholly owned by one or more

citizens; and property held in trust shall be regarded as being held by a citizen only if
all of the beneficial interest of the trust is held by persons who are citizens.

3.1.2.4. Obligations in Respect of the Environment

Article 69 provides that the State shall ensure sustainable exploitation, utilisation,
management and conservation of the environment and natural resources, and ensure
the equitable sharing of the accruing benefits. The state is obligated to work to achieve
and maintain a tree cover of at least ten per cent of the land area of Kenya and to
protect and enhance intellectual property in, and indigenous knowledge of,
biodiversity and the genetic resources of the communities.

Further, the State is enjoined to encourage public participation in the management,

protection and conservation of the environment; to protect genetic resources and
biological diversity; establish systems of environmental impact assessment,
36
environmental audit and monitoring of the environment; eliminate processes and
activities that are likely to endanger the environment; and utilise the environment and
natural resources for the benefit of the people of Kenya.

Individuals have also a duty to cooperate with State organs and other persons to
protect and conserve the environment and ensure ecologically sustainable
development and use of natural resources.

3.1.2.5. Agreements Relating to Natural Resources

Transactions relation to natural resources are subject to ratification by Parliament if
they involve the grant of a right or concession by or on behalf of any person, including
the national government, to another person for the exploitation of any natural
resource of Kenya.

Qualifications on Proprietary Rights

It is notable that rights in property ownership are exclusive but not absolute. The state
regulates rights due to the realization that a particular property right and use generate
far reaching effects for not only the property users, but the public at large. State and
the state actors come to control or prohibit land use practices that would affect other
people, properties or public interest(s). Practical imperative of population growth,
development and even state security dictate that state has to balance the private
property rights against public interests.

The intervention by the state has two objectives:

• To ensure proper management and utilization of a scarce resource and

in so doing to maximize the output of the resource base; and

• To ensure that the development and use of that scarce resource by

individuals conform to the demands of the public interest.

State intervention involves regulation of how individuals use their property and also
limit, qualify or extinguish private property rights in land for public utility or interest
though Compulsory Acquisition.

37
In many circumstances, a particular private property use generates far-reaching
effects for other the owners of other property and the public at large. This may be
protected by conferment of proprietary interest to other persons. For example, there
may be a grant of easement to allow the neighbour to enjoy certain rights over an
adjacent property or restrictive covenant to prevent the use of that land in a particular
way. Unfortunately, nuisance law and private arrangements such as restrictive
covenants may not, and are often unable to deal with all effects of an owner’s use of
land. For instance, questions of standing limit the effectiveness of public nuisance law
to deal with the adverse effects of the use of private property.

Among other things, this necessitates some form of state regulation of the use of
private property rights. The assumption, then, is that there are public rights in private
property, which justify state intervention in private land-use decision making.

In addition, certain governmental functions, which are developmental in nature (such

as the building of roads), require land. Further, due to contemporary interests in
environmental quality, the functions of the state have been extended to cover the
conservation of natural resources that are within its borders.

For these reasons, the state may take property from its private owners and reallocate
it to governmentally preferred uses, or leave the property in the hands of its owners
but regulate its use. The first approach – taking property – is the method of eminent
domain, which is also known as compulsory acquisition. The second approach –
property use – is the method of police power.

The Doctrine of Eminent Domain

This is the power of the state or its assigns has to acquire private property for public
purposes subject to the prompt payment of compensation. Whenever the state
exercises this power, it forces an involuntary transfer of property from private owners
to itself or its assigns.

The power of eminent domain is derived from the feudal notion that as the sovereign,
the state holds the radical title to all land within its territory. In Kenya, this power is
embodied in the Constitution, which requires that private property can only be
acquired compulsorily for public use. Further, the constitution requires that such

38
public use must be weighed against the hardship that may be caused to the owner.
The Constitution also requires that the acquisition must be accompanied by prompt
payment of adequate compensation.

The repealed Constitution also provided for a modified form of acquisition in the case
of trust land, which is referred to as “setting apart” which could be activated by the
President or local authorities. The rules governing the setting apart of trust land and
the payment of compensation to affected residents are contained in the Trust Land
Act.

Other cases of compulsory acquisition were regulated by the Land Acquisition Act
that was repealed by the Land Act (No 6 of 2012) whose Part VIII provides for
compulsory acquisition of interests in land in line with the new Constitution.

The power of compulsory acquisition thus provides the state with a useful instrument
for the conservation of environmental resources, this being in the public interest.

3.2.1.1. Origin of Eminent Domain

The Term “eminent domain” can be traced to a 1625 Dutch jurist Hugo Grotius who
used the term dominium emineus (supreme Lordship in Latin). This is the power of the
state or the sovereign power over property that is inherent by the incidence of
sovereignty. It is the right of the state or its assignees to take private property for
public purposes thus ousting the individuals or private rights to property.

Eminent Domain stems from The Radical Title Theory which espouses that the state
as the ultimate owner of all land has the power to compulsorily acquire the same. The
theory continues that in retaking a private property right, the state is merely resuming
its original grant or ownership. Once land is compulsorily acquired; private property
rights are extinguished and the land reverts to the original ``grantor’’ the state.

Having political sovereignty over a particular territory entitles state to interfere with
private property rights. The Doctrine of Eminent Domain was more specifically
embodied in the Land Acquisition Act Cap 295 of the Laws if Kenya, which Act dealt
with modalities, rules, principals and procedures of compulsory acquisition. In the

39
constitution of Kenya 2010, Eminent Domain manifests itself in chapter 5 (in article 66
(1) and (2), but qualification thereof are to be found in chapter 4, in article 40 (3).

3.2.1.2. Protection to Land-owners in Compulsory Acquisition Cases

Flowing from the constitutional protection of property ownership, the Land Act
which repealed the Compulsory Acquisition Act now regulates the procedure for the
exercise of power of compulsory acquisition.

 Return of the Land

Under s. 110 of the Land Act, after land has been compulsorily acquired and the public
purpose or interest justifying the compulsory acquisition fails or ceases, the Land
Commission may offer the original owners or their successors in title pre-emptive
rights to re-acquire the land, upon restitution to the acquiring authority the full
amount paid as compensation.

 Removal of Assets
If any plant or machinery is attached or permanently fastened to the land, the person
interested in that plant or machinery have a right to their removal. They may serve on
the Commission a notice in writing after receiving the notice of intention to acquire
the land.

 Prompt and Adequate Compensation

Section 111 of the Land Act provides for just compensation for land acquired
compulsorily.

Compensation should be paid promptly and in full to all persons whose interests in
the land have been determined according to the rules to be made by the Land
Commission to regulate the assessment of just compensation.

 Claims for Compensation

Section 112 provides for an inquiry to hear issues of propriety and claims for
compensation by persons interested in the land.

3.2.1.3. Procedure for Compulsory Acquisition

Part VIII of the Land Act 2012, deals with the procedure for compulsory acquisition.
Land may be acquired compulsorily if the Land Commission certifies, in writing, that

40
the land is required for public purposes or in the public interest as related to and
necessary for fulfilment of the stated public purpose.

S 107 provides that whenever the national or county government is satisfied that it
may be necessary to acquire some particular land, the Cabinet Secretary or the County
Executive Committee Member is to submit a request for acquisition of public land to
the Land Commission to acquire the land on its behalf. The relevant authority may
also acquire that land by itself if the Commission does not do so.

The Commission may reject a request of an acquiring authority, to undertake an

acquisition if it establishes that the request does not meet the requirements prescribed
under the Constitution.

If the acquisition is approved, the Commission is to publish a notice to that effect in

the Gazette and the county Gazette, and deliver a copy of the notice to the Registrar
of lands and every person who appears to the Commission to be interested in the land
including any person whose interests appear in the land registry and the spouse or
spouses of any such person, as well as any person actually occupying the land and the
spouse or spouses of such person.

After service of the notice, the registrar is required to make an entry in the register of
the intended acquisition.

The Land Commission may authorize, in writing, any person, to enter upon the land
specified in a notice so as to inspect the land and to do all things that may be
reasonably necessary to ascertain whether the land is suitable for the intended
purpose. The authorised person needs to first obtain the consent of the occupier; or
served on the occupier a notice of not less than seven days written. Compensation is
also to be paid for the damages caused by such entry.

The Commission is to prescribe a criteria and guidelines to be adhered to by the

acquiring authorities in the acquisition of land and all land to be compulsorily
acquired has to be geo-referenced and authenticated by the office or authority
responsible for survey at both the national and county government and

Doctrine of Police Power

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3.2.2.1. Definition of Police Power
The term "police power" refers to the right of a government to exercise "reasonable
control over persons and property" to protect the public's health and safety.

Police powers are rooted in English common law, extending back at least four
centuries. Police powers are closely related to the state's power to protect itself from
outside forces. The authority derives from the notion of societal self-defence.

Police power is best understood in contrast with the parens patria power: the power to
protect individuals for their own benefit. Confining dangerous mentally ill
individuals to protect the public is a police power, while confining individuals for
their own protection is a parens patria power.

The state's authority to restrict individual liberty is much greater when it is done to
protect the public. Thus, the state has considerable power to prevent the spread of
tuberculosis, but not to force a person to take medication for hypertension.

3.2.2.2. Police Power and Property Regulation

Police power is exercisable over a broad range of issues. For example, it allows the
destruction or restriction of property that poses a threat to the public, without paying
compensation. It also includes the right to act without a court hearing or other due
process protections, when necessary, to protect the public's health. Aggrieved persons
can contest such actions through habeas corpus proceedings and other post-restriction
proceedings.

In Kenya, the exercise of police power is limited by the Constitution. Article 66

provides that the State may regulate the use of any land, or any interest in or right
over any land, in the interest of defence, public safety, public order, public morality,
public health, or land use planning.

Exercise of police power is generally exercised through land use legislation, which
determines the uses to which land may be put, seeks to reconcile competing demands
on land and land-based resources, and seeks to ensure that established resource use
and conservation standards and objectives are adhered to by holders of land rights.

42
The regulation of the use of agricultural land and the regulation of the development
of land illustrate the use of the police power in Kenya.

The use of agricultural land is regulated by the Agriculture Act, which seeks to secure
the proper utilization and management of agricultural land so as to maximize output.
Among other things, the Agriculture Act empowers the Director of Agriculture to
issue land preservation orders to owners or occupiers of agricultural land requiring
the performance of certain acts to preserve the land and prohibiting acts which cause
soil erosion.

Another instance of police power is found in land use planning regulated by the Town
Planning Act and the Land Planning Act. Here, regulation seeks to maintain decent
environmental standards and to regulate use and development within the context of
intensifying land use. For instance, land owners or occupiers intending to put up
structures on their property are required to obtain the permission of “planning
authorities,” which are obligated to make physical plans. The idea is that any
proposed structure must adhere to the requirements of such plans.

Landlord and Tenant Act, and Land Control Act among many others also epitomise
the application of police powers.

Distinction between Police Power and Eminent Domain

Like eminent domain, police power, is also an attribute of the sovereignty of the state.

However, police power is the power of state to regulate and control as opposed to
acquiring compulsorily and is mostly manifest in parliamentary statutes like. Unlike
compulsory acquisition, it does not extinguish property rights but merely regulates
their use in order to vindicate public rights deemed to be overriding.

Again, the state is not obligated to pay compensation whenever it exercises this power,
the rationale being that it is simply requiring the land owner to stop causing harm to
the public. So that while compensation is required when the public helps itself to good
at private expense whenever the power of compulsory acquisition is invoked, no
compensation is due when the public – by exercising the police power – simply
requires one of its members to stop making a nuisance of himself or herself.

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44
4. Proprietary Interest
Introduction
There are numerous terms that define the different interests in real property, and the
most central concept is the estate in land. Estate and tenure in land allow possession
either now or sometime in the future for a specific or unlimited period of time.

The two notions have their origin in English feudal system of land holding that
determined the development of property law in that jurisdiction which spread to the
common law world including in Kenya.

Doctrine of Tenure and Doctrine of Estates

Doctrine of tenure and Estates originated during the Norman conquest of England in
1066 when the feudal system of landholding was introduced. The doctrines arose from
the English theory that a person could not own land which was held by the crown.
Individual obtained title to the land from the crown and merely held an estate in it,
authorizing the person to hold it for some period of time.

The doctrine of tenure was thus based on the division of land based on space. It legal
effect was that the crown was the owner of all the land and thus no one had absolute
ownership to it. Rather, landowners held the land 'of' the Crown as tenants (therefore
tenure). They could then alienate their land further, creating subtenants
(subinfuedation). As between the lord (and under-lords) the relationship was one of
mutual duties. In return for tenure, a tenant provides the lord with services and a right
to incidents.

The period of time for which land was held was the estate and the services attendant
to which the grant was made was the estate. These included fee simple estate (the
largest with no time limitation); fee tail (with certain limitations as to legal heirs); life
estates; and leasehold (also called a term of year).

In England, the doctrine of estates is still important, but the number of estates (which
could exist at common law) was reduced by the Law of Property Act 1925. Now, only

45
a fee simple estate and a leasehold estate can be legally created (although other estates,
such as life estate can still exist in equity).

Estates in Land
An estate in land or just “estate” is different from the “estate” used in property in
general especially in succession matters and bankruptcy matter where it denotes the
property, whether real or chattels that belong to the deceased or bankrupt person.

In the modern systems, Estate in land can be defined as an interest in land or real
property that may be possessory. It defines the nature, quantity, degree and extent of
an owner’s interest in real property.

It must be noted though that not all interests in real property are estates. This is
because in order for an interest to be an estate in land, the interest must allow
possession and must have certain duration. Interests, such as easements or profits a
prendre, which allow the use of a property, are not estates though they are recognised
as proprietary interests that attach to the land and thus pass with the land.

Estate in land is an interest that gives the owner a bundle of rights to the property,
including the right to improve, alter and develop it. For example, Mr. Octavia owns a
rental apartment. His ownership interest in the property is an estate because he has
all the rights to it despite the fact that he may have let out the land. When Mr. Onduru
has a lease and pays rent for the apartment for a couple of months, he also acquires a
leasehold estate for the duration he is granted the land. However, the use of the
apartment may not be an estate if it is merely permissive or is accompanied by
attendance such as that provided in lodges and guesthouses.

A real estate owner has the same rights as an owner of personal property: the right to
possess it, to control it, to enjoy it, and to exclude it from others, as well as the right to
dispose of it by selling it, gifting it, abandoning it, or bequeathing it—what lawyers
call alienation. This is the classic idea of ownership.

However, ownership or possession of real property is more complex than it is for

personal property. Many of these real estate interests have arisen from their devise in
wills, where the testator wants several heirs to benefit from the realty. More complex

46
forms of ownership, such as a life estate, can be applied to real estate, but not personal
property because realty has 2 qualities that personal property does not:

• Land is basically indestructible, and

• Land is not consumed in its use.

Real estate interests vary both in types of interest and in their duration, and whether
such interests are transferrable. A real estate interest can also depend on events or
specific actions. Anyone purchasing real estate should know what kind of estate is
being transferred, because it can severely limit the rights of the new property owner,
and will also affect the value of the real estate.

The Land Act, cap 6 of 2012 provides the two forms of land tenure: Freehold; and
Leasehold.

Freehold Estates
The Freehold is the greatest possible estate in land, wherein the owner has the right to
use it, exclusively possess it, commit waste upon it, dispose of it by deed or will, and
take its fruits. A freehold represents absolute ownership of land, and therefore the
owner may do whatever he or she chooses with the land. If an owner of a freehold
dies intestate, the land will descend to the heirs.

The freehold estate in Kenya is the equivalent of fee simple estate in England. The
term “fee” denotes an absolute title in land, from old French, fief, for "payment.” The
term "simple," here is used to show that it is an absolute title and not a "conditional
fee," or "determinable fee," or "fee tail."

Leasehold Estate
“Lease” means the grant, with or without consideration, by the proprietor of land of
the right to the exclusive possession of his or her land, and includes the right so
granted and the instrument granting it, and also includes a sublease but does not
include an agreement for lease. “Lessee” is the person to whom a lease is granted and
includes a person who has accepted a transfer or assignment of a lease. “Lessor” on
the other hand is the person by whom a lease is granted and includes a person who
has accepted the transfer or assignment of the reversion of a lease.

47
A leasehold estate lasts for a definite period of time. A leaseholder has no power to
alienate the property (transfer); only his/her own interest can be transferred if it is
allowed by the lease.

Leasehold estates include estate for years, estate at will, and estate at sufferance. An
estate for years lasts for a definite period of time. For example, a tenant signing a 1
year lease has such an estate in years. An estate at will is one where a tenant can stay
until either the tenant or the owner terminates the possession. An estate at sufferance
exists when the tenant stays after the lease has expired, in which case, the landlord
can expel the tenant at any time.

Other Legal Interests in Land

There are other partial interests which do not amount to an estate as may be defined
under legislation, including but not limited to:

Easement
An easement is the grant of a non-possessory property interest that grants the
easement holder permission to use another person's land. There are different kinds of
easements. If an easement appurtenant is granted, it involves two pieces of land,
where one serves as the servient tenement that bears the burden, and the other the
dominant tenement, which benefits from the grant of the easement and has permission
to use the servient land in some manner.

In general, there are two types of easements: affirmative and negative.

a) An affirmative easement gives the easement holder the right to do something

on the grantor of the easement's land, such as travel on a road through the
grantor's land.

b) A negative easement, on the other hand, allows the easement holder to prevent
the grantor of the easement from doing something on his land that is lawful for
him to do, such as building a structure that obscures light or a scenic view.

Easements as proprietary rights are transferrable and basically transfer/pass along

with the dominant tenement.

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 Profits à Prendre
A profit à prendre enables a person to take part of the soil or produce of land that
someone else owns. It is a right to take from the land, as in the mining of minerals and
is, therefore, distinguishable from an Easement, which is a non-possessory interest in
land generally giving a person a right of way on the property of another.

A profit à prendre gives the holder the right to remove products of natural growth
from another’s land. Many profits concern ancient, but not necessarily obsolete
practices; some, such as the right to fish or shoot on the land of another, can be of great
commercial value.

Customary Land Rights

Customary land rights are characterised by multiple users: individuals, households,
kinship groups, villages, communities, etc.

A charge by way of Legal Mortgage

In England, a mortgage by legal charge or technically "a charge by deed expressed to
be by way of legal mortgage" (Law of Property Act 1925 (c.20)). In this case, the debtor
remains the legal owner of the property, but the creditor gains sufficient rights over it
to enable them to enforce their security, such as a right to take possession of the
property or sell it.

In Kenya, the law provides only for the creation of a charge which is an equivalent to
the English charge by way of Legal Mortgage.

To protect the lender, a mortgage by legal charge is usually recorded in a public

register.

Rent Charges
A rentcharge is a rent charged upon land, not being a rent payable to a landlord under
a lease (a rent payable to a landlord is known as a rent service). To be a legal rentcharge
the rent must be formally created (by deed) and must be either perpetual or for a term
of years absolute and must be in possession.

Rentcharges are still created today upon a sale of land, i.e. the purchaser, instead of
paying a lump sum, covenants to pay an annual sum of money for a fixed term of

49
years or in perpetuity and the obligation to pay this sum is charged upon the land. In
England, a rentcharge may be charged directly upon land or it may be charged upon
another rentcharge.

Rights of entry
Rights of entry may be exercisable over or in respect of a legal lease to which it is
annexed or to a legal rentcharge. A right of re-entry in a lease, if the tenant, for
example, fails to pay the rent, is made an interest in land itself. It can be attached to a
legal rentcharge to secure payments of the rent.

Equitable Interests in Land

The term equitable means that the right was originally only recognised by the Court
of Chancery, which dealt with equitable rights and not by the Courts of Common Law.

Equity often applied where the application of the strict rules of common law would
not have produced a just result. The effect was that equity often did not insist on the
observance of formalities, such as the need for a right to be granted in a deed.

In order to decide if the right is equitable, one should ask:

(i) Is it above the list of legal interest? If not, then it must be equitable; and

(ii) If it is in the above list, then if did it comply with the legal formalities? If
not, then it must be equitable.

Interest under Trust

Trust, arises when property is held by one person (known as trustee) on trust for
another (known as beneficiary).

Many trusts scenarios are not created by the parties specifically agreeing to set up a
trust but in other ways. For example, by one party (Y) paying part of the purchase
price of property which is actually held in X's name. Here, equity implies a trust in
favour of Y.

The legal ownership and the benefit are split and the common law, apparently because
it could not cope with the idea of splitting these two, refused to recognise trusts and
allowed the trustee to ignore the rights of beneficiaries.

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However, equity enforce trusts because this was a matter of conscience. Common
example is that a trust is where a person (X) contributes to the purchase of land but
the legal title is held in the name of Y. Y then will hold the trust of X in the absence of
contrary intention.

Interests not Created Formally

If a contract has been made to create an interest in land then equity may, at its
discretion, enforce it by decree of specific performance (court order which commands
the performance of a contract) or restrain its breach by an injunction (court order
which either orders a lawful act to be done or restrains an unlawful act). This is in
accordance with the equitable maxim that 'equity looks on that as done which ought
to be done'. This means that when a deed is required to create an estate or interest in
land and there is no deed, equity may still regard the interest subsisting in land as an
equitable interest.

For example, Jacey agrees to grant Casper a right of way over his land. This is not in
the forms prescribed by the land laws. The want of formality would make it not to be
a legal easement. However, equity may come to rescue and declare it to be an equitable
easement.

It is notable that legal provisions with regard to transfer of land by sale or other
disposition of an interest in land must:

(i) Be in writing;

(ii) Contain all the terms agreed my parties; and

(iii) Be signed by all the parties.

Therefore, equity will enforce a contract for an equitable easement provided that it
satisfies these requirements. Contracts made before that date do not require writing
and there are several fairly cases in which this point has been important.

Restrictive Covenants
Restrictive covenants is, where a person covenants in a deed not to use his land in a
certain way or to do something on his land, such as keep fences in repair or not build
on the land. These have only ever been enforced in equity.

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 Distinction between Legal and Equitable Interest
The reason for differentiating between the legal and equitable interests is because of
the different effect which they have on the purchaser of the land.

Note that if a person is not the purchaser, then that person takes the land with all
equitable rights, such as inherited the land.

Overreaching
Overreaching is the process by which equitable rights which exist under a trust of a
land are removed from the land and transferred to the money (the capital money)
which has been paid to purchase the land. The effect is to give the purchaser automatic
priority over equitable interest under a trust.

In England, under s. 2 LPA 1925:

(i) A conveyance to a purchaser of a legal estate in land shall overreach any equitable
interest or power affecting the estate, whether he has notice thereof. There are
various instances where overreaching can take place but the relevant one here is,
(ii) Where the provision of s 27 of the LPA regarding the payment of capital money are
complied with, i.e. the capital money is paid to at least two trustees or a trust
corporation.
Note that this vital restriction on overreaching: It can only take place if the transaction
is made by at least 2 trustees or a trust corporation.

Conclusion
The Land Act advocates for equal recognition and enforcement of land rights arising
under all tenure systems and non-discrimination in ownership of, and access to land
under all tenure systems.

Interest over Land under Land Law of 2012

Under the new laws, land has been classified into (a) Public Land; (b) Private Land;
and (c) Community Land.

Public Land
This is defined pursuant to Article 62 of the Constitution and includes unalienated
land, land occupied by a State organ, land transferred to the State, land to which no
heir can be identified, minerals, forests, reserves, national parks, water catchment

52
areas, sea, lakes, rivers, land between high water mark and low water mark, any land
not classified as private land or community land. The National Land Commission is
responsible for administration of public land.

Community Land
Is defined pursuant to Article 63 of the Constitution and includes land lawfully
registered in the name of group representatives, land lawfully transferred to a specific
community and any land declared to be community land by an Act of Parliament.
Community land shall be managed in accordance with the law enacted pursuant to
the Constitution. However, the law has not yet been enacted and the Constitution
provides for a 5 year period within which legislation has to be enacted.

Private Land
This includes registered land held by any person under:

a) Freehold tenure, and

b) Leasehold tenure.

Land can be converted from one category to another.

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5. Tenancies
Introduction
A tenancy, leasehold, a lease, a let, a demise or a term of years all denote the same thing.
This may denote the contract by which one conveys land for a specified term and for
a specified rent. It also denotes the act of such conveyance or the term for which it is
made. In this part, we refer tenancies to the piece of land or property that is leased.

Under the Land Act 2012, the owner of private land may lease that land or part of it
to any person for a definite period or for the life of the lessor or of the lessee or for a
period which though indefinite, may be terminated by the lessor or the lessee.

These leases are subject conditions set by the Land Act or any other law or which the
parties may impose upon themselves.

A lease (also demise, term of years, tenancy or let) is an estate in land. It can therefore
(subject to the agreement between the parties) be transferred or assigned to a third
party who will replace the tenant as a new tenant.

In England, under the Rent Acts (e.g. the Landlord and Tenant Act 1954, Rent Act 1977,
the Protection from Eviction Act 1977 etc) various protection were granted to a tenant
and thus landlords who desired to avoid the operation of these statutes, which would
give tenants access to various protections, used to term the agreements as licences and
not leases.

Case law has determined is that the labelling of a document as a Lease or as a Licence
will not actually dictate what type of arrangement has been entered into. A Lease may
still be created, notwithstanding the fact that the parties have called the arrangement
a Licence to Occupy. Thus, in Street v. Mountford, it was succinctly stated, “a five
pronged implement for manual digging is a fork", whatever the manufacturer chooses
to call it.” This was also equated to a lease. In Street v. Mountford, the court
determined the test that was to be used to determine whether a grant was a lease or a
licence:

(i) Exclusive possession;

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 (ii) For a Definite duration; and

(iii) For a rent.

Exclusive possession
The key factor that sets a Lease apart from a Licence is the fact that it grants a right to
the "exclusive possession" of the premises in question (Aslan v. Murphy). As such, it
gives the Tenant a formal interest in the premises (which, in some cases must be
registered at the Land Registry). Exclusive possession can be by two or more persons
in the form of a joint tenancy if there is a unity of possession, interest title and time,
(Somma v. Hazelhurst; AG Securitirs v. Vaughan; Antoniades v. Villiers).

A person has exclusive possession if he can exercise all of the same rights over the
premises as the property owner, including the ability to exclude others from the
premises, even the property owner themselves (except to the extent that the property
owner has reserved rights in the Lease to enter the premises, for example to carry out
works).

A lodger does not have exclusive possession and is therefore not a tenant (Street v.
Mountford – If the landlord provides attendance or services which requires the
landlord to exercise unrestricted access to and use of the premises)

If however sham provisions are inserted that are only intended to deprive the tenant
of the benefits of the Rent Acts, then in spite of these sham provisions, there will be
exclusive possession (Aslan v Murphy – Requiring 90 mins access which was wholly
impracticable did not deny the tenant protection under the Act; also Antoniades v
Villiers).

It should be noted that “possession” is not the same as "occupation". A Tenant may
not be in actual occupation of the premises, for example, the Tenant may have granted
a sublease of the premises. The fact that the Tenant has been able to grant such rights
of occupation however, and is consequently entitled to receive a rent from it, shows
him to have the same control and rights over the premises as the property owner (i.e.
it reflects a right of ownership), and hence that it has “possession” of the premises.

55
Not all exclusive occupation amounts to exclusive possession – E.g. an employee in
exclusive occupation under the term of his employment is not a tenant (Street v.
Mountford). So also is a person offered accommodation on a charitable basis when
they were bombed from their houses during the war (Booker v. Palmer) or houseless
persons housed by a city council (Westminster City Council v Clarke).

Section 23 of the Land Act provides that in every grant or lease relating to public land,
unless the grant or lease expressly provides otherwise, there is an implied covenant
by the grantor or lessor that the grantee or lessee, paying the rent and fulfilling the
conditions of the grant or lease, shall enjoy quiet possession of the premises without
interruption by the grantor or lessor or any person claiming under the grantor or
lessor, except so far as the laws for the time being in force may permit.

A term certain
A lease cannot be for an indeterminate duration. In Lace v.Chandler a ‘lease’ for the
duration of war was held not to amount to a lease (but due to statutory intervention,
the wartime leases were transformed into 10 yrs lease under Validation of Wartime
leases Act 1944.)

A valid lease has to have an identifiable commencement and termination date. In

Prudential Assurance co. v. London Residuary Body, a lease that was to be terminated
on the land being required for expansion of the road was invalid for being uncertain.
In England, a lifetime lease is considered to only amount to a 99 yrs lease determinable
at death of the lessee (s.149 (6) of LPA 1925).

Section 56 of the Land Act provides that the owner of private land may lease it for a
definite period or for the life of the lessor or of the lessee or for a period which though
indefinite, may be terminated by the lessor or the lessee.

Rent
The requirement for rent was included in the test of Street v. Mountford as a key
component in determining whether or not there was a valid lease. However, in
England, the LPA 1925 (s. 205(1)(xxvii)) did not require rent in order for a tenancy to
be valid. This was the position that the Lordships in the case of Ashburn Ansalt v. Anold
took.
56
The Land Act in Kenya also takes the same position that rent is not a must for a valid
lease. It is nonetheless notable that the presence of rent is a good indication as to the
fact that exclusive possession was intended by the parties as it forms a consideration
for the grant of interests in contractual engagements.

If there is no consideration in a leasehold transaction, then it is required that it be made

by way of deed (executed and attested as per law applicable).

Other Essential Elements

In Kenya, case law allude to other necessary requirements for a valid lease. These
include:

5.1.4.1. Intention to Create a Lease

There must be an intention to create a lease so that whether an agreement is a lease or a
licence is an issue that can properly be gauged based on the intentions of the parties where
the process can be greatly assisted by looking at the conditions at which parties entered
into the arrangement.

In Hecht V. Morgan 1957 E.A 741 the rule as laid down by the court was that there must be
a clear-cut intention to create a lease on the part of both parties. The intention can be
inferred from those surrounding circumstances and once the intention of the parties have
been gauged, it should be clear that what was intended was a leasehold grant and in the
event that there is failure to ascertain that intent on the part of the parties and where
surrounding circumstances do no point towards the creation of a lease the courts have
been inclined to hold that a licence rather than a lease is what was created.

5.1.4.2. Defined Premises

No lease can be created or talked of unless the property in question is concretely defined
or is such that one can have the means of delimiting the boundary of the premises so that
no lease can be created where the frontiers of the property cannot be identified.

That position has won the approval of the court in Hebatulla Brothers Ltd v. Thakore. The
court in this case stated that no tenancy could be created where the property to be let out
could not be described in precision.

Section 56 of the Land Act provides that the owner of private land may lease that land or
part of it.

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 Leases and Licences
The basis upon which property/land is occupied is of significance to both the occupier
and the property owner. What may be referred to as a ‘Licence to Occupy’ may
actually amount to a Lease and vice versa. Occupiers and property owners will often
use the terms ‘Licence’ and ‘Lease’ interchangeably, particularly where the occupation
is for a short term only.

There are, however, significant differences between the two. A licence is a mere
permission to enter or occupy land. It does not grant proprietary right to the grantee
unlike a lease which is an estate in land and therefore entitles a person to rights over
the land.

Definition of a Licence
A licence is a special permission to do something on, or with, somebody else’s
property which, were it not for the license, could be legally prevented or give rise to
legal action in tort or trespass.

Types of Licences
5.2.2.1. Bare licence
A bare licence is a personal permission or consent, granted without consideration, to
enter, traverse over or be present upon the land of another. A bare licence covers a
huge number of everyday situations where a person may enter on to another person's
property - for example, a friend inviting another person over for a drink.

A bare licence is a defence to what would otherwise amount to the tort of trespass
(Goldsack v Shore (1950) 1 KB 708 at 714 per Evershed MR).

Where the licencee oversteps the ambit of the licence, his status will therefore be that
of trespasser (Hillen and Pettigrew v ICI (Alkali) Ltd (1936) AC 65 at 69 per Lord Atkin).
The famous quote of Scrutton LJ sums this up: "When you invite a person into your
house to use the staircase, you do not invite him to slide down the bannisters" (The
Carlgarth (1927) P 93 at 110). Similarly, if the person is permitted to enter the land for
one purpose but enters for another purpose (R v Pratt (1855) 4 E & B 860 at 865, 119 ER
319 at 321), or whilst on the land begins to pursue a different purpose to that which

58
he is authorised (Hillen and Pettigrew), again he becomes a trespasser, where it is
known or understood that the occupier would not have given consent (R v London CC,
ex p Corrie (1918) 1 KB 68 at 73 per Darling J).

Bare licences may be created expressly or impliedly and no formalities are required.
A bare licence may arise by implication from circumstances or conduct (R (Beresford)
v Sunderland CC (2004) 1 AC 889).

5.2.2.2. Contractual Licence

Contractual licences arise from permission to use or occupy land, derived from an
express or implied contract. It is not a gratuitous licence but is founded on valuable
consideration moving from the licensee.

5.2.2.3. Licences Coupled with an Equity

These arise where the owner of the land grants a licence to another to go upon the
land and occupy it for a specific period or a prescribed purpose, and on the faith of
that authority the licensee enters into occupation and does work, or in some other way
alters his position to his detriment. In these circumstances, the owner of the land
cannot revoke the licence so as to defeat the period or purpose for which it was
granted (National Provincial Bank Ltd v Hastings Car Mart Ltd (1964) Ch 665 at 686).

5.2.2.4. Licences Coupled with a Grant

This arises where there is a permission to enter onto another's land for the purpose of
removing something from that land (such as timber) (Muskett v Hill (1839) 5 Bing (NC)
694 at 707-708).

This licence combines the grant of an interest (such as a profit a prendre) with an
ancillary permission to enter the land to realise or exploit that interest (see for example
Thomas v Sorrell (1673) Vaugh 330 at 351).

Lease versus Licence

It is often important to establish whether a lease or a licence is held, because the holder
of a lease will have considerably more rights than the holder of a licence. In Street v
Mountford (1985) Ac 809, Lord Templeman said that where exclusive possession is
granted of premises for a term at a rent, then prima facie, a lease is granted. He warned

59
against 'sham' agreements in which leases are disguised as something else - usually
licences.

In Street v Mountford, although a 'licence' was granted and the landlord reserved the
right to enter the room to inspect it, maintain it and read meters, it was held that in
reality the agreement was a lease because the tenant had exclusive possession.
Exclusive possession means that the tenant may exclude everyone else, including the
landlord, from the premises. However, many leases, particularly those of flats where
there is a management company, will reserve the right for the 'landlord and his agent'
to inspect the property for maintenance and repair, usually giving at least 48 hours
written notice, but this does not mean that exclusive possession has not been granted.

Where a property is shared, it is necessary to consider whether all the occupiers have
equal rights and interests in the property as a whole, in which case they would be joint
tenants. In Antoniades v Villiers (1988) 3 WLR 1205, two occupiers of a small one
bedroom flat paid equal amounts of rent. The landlord's 'right to occupy' which he
attempted to reserve was held to be a sham - they had exclusive possession and were
joint tenants. In AG Securities v Vaughan (1988) 3 WLR 1205, four occupiers signed
different licence agreements on different dates, for different terms and payments. The
four unities were not present to make them joint tenants and although they had each
an exclusive right to occupy the flat with the other three, they did not have collective
total exclusive possession - consequently they were held to be licensees.

Types of Tenancies
A number of these leases are recognised by the Land Act.

Fixed term (s 56 of Land Act)

A fixed-term tenancy or tenancy for years lasts for some fixed period of time. It has a
definite beginning date and a definite ending date. Despite the name "tenancy for
years", such a tenancy can last for any period of time—even a tenancy for one week
may be called a tenancy for years. At common law the duration did not need to be
certain, but could be conditioned upon the happening of some event, (e.g., "until the

60
crops are ready for harvest" or "until the war is over"). In many jurisdictions that
possibility has been partially or totally abolished.

A fixed term tenancy comes to an end automatically when the fixed term runs out or,
in the case of a tenancy that ends on the happening of an event, when the event occurs.
If a holdover tenant remains on the property after the termination of the lease, s/he
may become a tenant at sufferance because the lessor/landlord has suffered (or
allowed) the tenant to remain as a tenant instead of evicting him or her. Such a tenancy
is generally "at will," meaning the tenant or the landlord may terminate it at any time,
upon the providing of proper statutory notice.

Short Leases
Section 58 defines a short term lease as a lease made for a term of two years or less
without an option for renewal; or a periodic lease.

A short term lease may be made orally or in writing and is not a registrable interest in
land.

Periodic Tenancy (s 57 of the Land Act)

When no specific ending date for a lease is defined, but there is an agreed-upon term,
such as month-to-month for occupancy, this is known as periodic tenancy or estate
from period to period. In real estate, this is one type of leasehold estate. The owner or
landlord and tenant agree to certain rights and obligations for these periods, but do not
specify an ending date, so it's an indefinite period of tenancy. Since no ending date is
specified, notice per the agreement must be given for termination and vacancy.

In real estate law, a periodic tenancy refers to an arrangement between a landlord and
a tenant in which the tenant occupies a property on a periodic basis. The tenancy may
be set on a week-to-week, month-to-month, or year-to-year basis. Alternatively,
though less common, the landlord and tenant can agree on another time period.
Usually, no formal termination date has been set, and the tenancy runs for an
indefinite period of time.

A periodic tenancy can occur for either commercial or residential properties, and it
primarily arises in a couple of different cases. Most commonly, it occurs when a tenant

61
continues to inhabit a property after a formal written lease has ended. This is
considered an implied periodic tenancy. In other situations, a landlord and tenant can
enter into a written agreement that expressly specifies the periodic rental period.
These rental arrangements can be advantageous because they provide landlords and
tenants with the ability to end rental agreements on relatively short notice.

Termination of a periodic tenancy ordinarily occurs when one party gives the other
party proper termination notice. Usually, the notice needs to be one full period, unless
otherwise dictated by statute or a written agreement between the parties. For instance,
if the periodic tenancy is month-to-month, notice of termination would need to be
given a month in advance. If proper notice is not provided, the tenancy can end by
agreement of the landlord and tenant or by a court order. As a general rule,
termination notices should be made in writing.

A periodic tenancy is different from a tenancy at will, which is an arrangement in

which either a landlord or a tenant can terminate a tenancy without giving the other
party prior notice. A tenancy at will often forms if the parties have not entered into a
formal lease. It can also occur if the tenant has not offered consideration, such as the
payment of rent, for the tenancy. For example, a tenancy at will may be created if a
person allows a relative to live in his or her home without entering into a formal
agreement. Many jurisdictions also distinguish between a periodic tenancy and a fixed-
term tenancy. When the term is fixed, the parties usually enter into a written agreement
that specifies a date on which the lease ends. Neither the landlord nor the tenant is
required to give notice of termination. The lease simply ends on the date set forth in the
agreement

Tenancy at Will
This is often referred to as tenants without leases. If you are living in a property
without a lease but with the permission of your landlord, you are a tenant at will. This
is the most common type of tenancy. It is also referred to as month-to-month tenancy
because landlords usually require tenants to pay rent once a month, in advance.

As a tenant at will, you have the right to "lawful and exclusive possession" of the place
you rent. This means that your landlord cannot come into your property without your

62
permission. If she does, the law says that she is trespassing. Unfortunately, many
landlords think that they can enter the property whenever they want because they
own the property. The law allows a landlord to enter a tenant's apartment only in
certain situations.

You are a tenant at will if:

 You have an oral agreement to rent;

 You have a written tenancy at will agreement that either says you have a
month-to-month tenancy or does not specify when your tenancy ends.
(Remember, if you have a written agreement that is for a fixed term or specifies
the date your tenancy ends, you have a lease).

 Your written lease has ended or "expired," you have not signed a new lease,
and your landlord continues to accept rent at the beginning of the month
without objecting or writing on your rent check "for use and occupancy only";

 Your landlord sends you a valid notice to quit and then later decides to allow
you to stay on without a new lease;

 You have a written lease that does not state the date on which your tenancy
will end or the amount of the rent (in other words, your lease is not valid).

If a lease exists at the sole discretion of the landlord, the law of the jurisdiction may
imply that the tenant is granted, by operation of law, a reciprocal right to terminate
the lease at will. However, a lease that explicitly exists at the will of the tenant (e.g.
"for as long as the tenant desires to live on this land") generally does not imply that
the landlord may terminate the lease; rather, such language may be interpreted as
granting the tenant a life estate or even a fee simple.

A tenancy at will is broken, again by operation of law, if the:

• Tenant commits waste against the property;

• Tenant attempts to assign the tenancy;

• Tenant uses the property to operate a criminal enterprise;

• Landlord transfers his/her interest in the property;

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 • Landlord leases the property to another person;

• Tenant or landlord dies.

The specifics of these rules differ from jurisdiction to jurisdiction.

Subject to any notice required by law, a tenancy at will also come to an end when
either the landlord or the tenant acts inconsistently with a tenancy. For example, the
changing of locks by the landlord is an indication of the end of the tenancy, as is the
vacation of the premises by the tenant. However, in some jurisdictions, such as
California, a landlord is prohibited from using a "self-help" remedy, such as changing
the locks, to terminate a tenancy, particularly a residential tenancy. Doing so may
constitute a "constructive eviction" and expose the landlord to civil and criminal
liability.

Tenants at Sufferance (s 60 of the Land Act)

If a person remains in a property without permission from the landlord after their
leases or tenancy at will agreement ends or the landlord terminates the tenancy,
he/she becomes a tenant at sufferance. Technically, under the law, he/she does not
have a tenancy because the landlord does not agree to his/her having possession of
the apartment. The law, however, does not consider him/her to be a trespasser
because, at one point in time, the landlord did agree to the letting of the property.

The biggest difference between tenants at will and tenant at sufferance is that if one is
a tenant at sufferance, a landlord can evict him/her without giving a written notice.
This does not mean that a landlord can go into the property and physically remove
the occupant. If one is a tenant at sufferance, a landlord must still go to court and ask
the court for permission to evict the tenant.

Even though the landlord does not have to let the tenant know that he/she is going to
court, once a landlord goes to court, she/he must send a notice of the eviction hearing.

A tenancy at sufferance is created when a tenant wrongfully holds over past the end
of the durational period of the tenancy (for example, a tenant who stays past the
expiration of his or her lease). It occurs when a tenant (called tenant at sufferance)
continues to retain the occupation or possession of the land without the landlord's

64
consent after the expiration of lease. It ends when the tenant is either evicted or is
allowed to stay by the landlord.

One is a tenant at sufferance if:

• The written lease expires (it is not self-extending or the tenant does not renew it
for another term) and the landlord protests at the tenant staying;

• The landlord sends a valid notice to quit and terminates the tenancy for breaking
terms of the lease;

• The landlord sends a valid 14-day notice to quit for non-payment of rent;

• One was a tenant at will and is holding over after the landlord sent a valid notice
to quit;

• A subtenant is holding over after the original tenant's lease ended;

• One is in the apartment after the landlord has gotten an order to evict the tenant
(even if the tenant has received a stay of execution from the court, giving
permission for him/her to stay for a certain period of time); or

• Your landlord loses her property by eminent domain and the new owner has not
accepted rent from the tenant.

A tenancy at sufferance can easily be converted back into a tenancy at will. All that is
required is for the landlord to agree to the arrangement, either in writing or orally, or
by accepting rent without "reserving his/her rights." For example, if you pay rent at
the beginning of the month and your landlord accepts it without reserving her rights,
you become a tenant at will. To properly reserve his/her rights to keep you as a tenant
at sufferance, a landlord should give you a receipt for rent or money paid stating "for
use and occupancy only." If a landlord does not do this, you may become a tenant at
will.

Tenancy by Estoppel
This arises when a party is estopped from denying granting what was indeed
intended to be granted. This arose in the case of Bruton v. London Quadriant Housing
Trust.

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 Future Lease
Section 61 provides that a lease of land may be made for a term to begin on a future
date, not being later than twenty-one years after the date on which the lease is
executed.

A future lease, which is expressed to be for a period of more than five years, shall be
of no effect unless and until it is, registered.

Assignment and Subletting of Leases

Assignment
Assignment is the process itself whereby all rights that a lessee or tenant possesses
over a property are transferred to another party.

If a tenant wants to get out of a lease that is not expired, one of the legal options is to
assign or transfer the lease to somebody else. For example, if somebody signs a
commercial lease for 12 months and the business stops working after 10 months, that
person can still opt not to pay for the remaining 2 months by assigning the lease. The
document attesting the transfer (from the original tenant to the incoming tenant) is
called an "Assignment of Lease Agreement".

Depending on the lease, there may be different requirements that need to be satisfied
before the original tenant can be released of any lease-related responsibilities. The
most important one is that, in most cases, the landlord needs to consent to the lease
transfer.

Subletting
A sublease is when one transfers less than all of his interest or rights to use and enjoy
the premises under a lease and keeps some right to re-enter or re-take the premises.
For example, when a person lets someone else (called the "sub-tenant" or "sub-lessee")
to live on the premises for the first 11 months of your 12-month lease with the
landlord, at the end of the 11th month, the person will have the right to re-enter the
premises. During those 11 months he is a "sub-landlord."

Differences between Assignment and Subletting

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Assigning a lease is not the same thing as subletting, although the two terms are often
confused. In the case of an assignment of lease, there is a direct relationship
established between the new tenant and the landlord, as the landlord collects rent
directly from the new tenant after the latter's assumption of lease. In the case of a
sublease, the original tenant is still responsible for all the conditions stated in the lease
agreement even if there is a new tenant who pays the rent.

Lessor's Consent to Dealing with Leases

Section 55 of the Land Act provides that if a lease contains a condition, express or
implied, by the lessee that the lessee shall not transfer, sub-let, charge or charge or part
with the possession of the land leased or any part of it without the written consent of
the lessor, and the dealings with the lease shall not be registered unless:

(a) The consent of the lessor has been produced to, and authenticated to the
satisfaction of the Registrar and the Registrar shall not register any instrument
purporting to transfer or create any interest in that land, and

(b) A land rent clearance certificate and the consent to the lease, certifying that no
rent is owing to the Commission in respect of the land, or that the land is
freehold, has been produced to the Registrar.

Under section 67, if a lessee applies to the lessor for consent, the lessor shall inform
the lessee, in writing, within a reasonable time after receiving the application, whether
the lessor is giving or refusing consent. The section further stipulates that, a covenant
by the lessee not to take an action without the consent of the lessor shall be construed
as requiring the lessor not unreasonably to withhold consent to the taking of that
action by lessee.

Under the Act, consent is unreasonably withheld if the lessor as a condition of or in

relation to the giving of consent:

(a) Requires the lessee to pay any money, by way of additional rent, or a premium
or a fine or other consideration for the consent, other than the payment of the
lessor's reasonable expenses incurred in connection with the giving of
consent;

67
 (b) Imposes on the lessee any unreasonable condition or precondition; or

(c) The lessee has requested for consent to transfer or assign the lease or enter
into a sublease, and the lessor objects to the gender or nationality or other
personal characteristic of the transferee, assignee or sub-lessee, in
circumstances that a reasonable person would consider those factors
irrelevant to the granting of such consent.

If the lessor refuses to give consent or gives consent subject to a condition or pre-
condition and the lessee so requests, in writing, the lessor shall promptly inform the
lessee, in writing, of the reasons for the refusal or for the imposition of the condition
or pre-condition, as the case maybe.

Consent may be sought by the lessor for:

(i) Transfer or assign the lease;

(ii) Enter into a sublease;

(iii) Part with possession of the leased land or buildings;

(iv) Change the use of the land or buildings from a use which is permitted under
the lease;

(v) Extend, improve, add on to or in any other way develop any building beyond
what is permitted in the lease;

(vi) Create a charge over the lease; or

(vii) In relation to any part of the leased land or buildings, or for any part of the
term of the lease.

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6. Covenants in Land
Introduction
Covenants are agreements that are contained in transactions affecting land. In most
cases, parties to the transaction make certain promises that are binding on them and
their successors in title.

The main covenants relate to:

a) Leasehold; and

b) Freehold Covenants

Leasehold Covenants
Leasehold covenants are normally expressly created by the parties. For example, the
parties to a lease can covenant that the lessee/tenant will be the one to pay land rates
to the municipal council and will keep the premises in good repair. The landlord and
tenant will usually be bound by their respective covenants under the law of Contract.

There are also covenants that are implied by law, especially when the lease is silent
about it. These implied covenants include those implied by the common law (e.g.
covenant for quiet enjoyment) or by statute (Land Act No 5 of 2012, s 65).

These covenants provide rights and obligations to the parties. The landlord’s
covenants/obligations are therefore the rights of the tenant and the tenant’s
covenants/obligation confer rights to the landlord.

Landlord’s Covenant
6.2.1.1. Covenant for Quiet Enjoyment
Section 65(1) of the Land Act provides that:
So long as the lessee pays the rent and observes and performs the covenants and
conditions contained or implied in the lease to be observed and performed on the
lessee's part, the lessee shall peaceably and quietly possess and enjoy the land leased
during the term of the lease without any interruption from or by the lessor or any person
rightfully claiming through the lessor.
All acts calculated to interfere with the tenant or his family’s peace and comfort is a
breach of the covenant for quiet enjoyment. In Kenny v Preen [1963] 1 QB 499, the

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landlord threatened, both by letters to the tenant, and by shouting at her and banging
on her door, to take physical action to evict the tenant and remove her belongings
from the demised premises. The landlord persisted in these direct threats to the tenant
herself despite letters from her solicitor asserting that the notice to quit was invalid
and that the tenancy was unfurnished, and therefore protected. Thus, the tenant
brought an action in the county court against the landlord for damages for breach of
his covenant for quiet enjoyment, for an injunction to restrain the landlord from
further interference with her quiet enjoyment of the premises, and for a declaration
that her tenancy was protected by the Rent Acts. It was held that the landlord was in
breach of his covenant for quiet enjoyment because:

a) There had been a course of conduct on the landlord’s part amounting to

direct physical interference with the tenant’s enjoyment of the premises
demised and

b) Even if there had been no direct physical interference with the tenant’s
possession and enjoyment of the demised premises, the landlord’s conduct
had seriously interfered with the tenant’s proper freedom of action in
exercising her right of possession, had tended to deprive her of the full
benefit of this right, and was an invasion of her right to remain in
possession undisturbed, and so in itself constituted a breach of the
covenant.

A landlord does not commit a breach of an implied covenant for quiet enjoyment
merely by asserting that the tenant’s title and right to the possession of premises has
been validly determined, at any rate if the landlord believes the assertion to be true,
nor even if he so asserts frequently, emphatically and rudely, nor does he commit such
a breach by threatening proceedings in the courts for possession and damages (Kenny
v Preen).

But a course of conduct involving threats of physical eviction and removal of the
tenant’s belongings, in a deliberate effort to drive the tenant out, together with a
substantial element of direct physical interference (such as repeated knocking on the
door and shouting threats), does constitute a breach of such a covenant and can do so

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even if there is no direct physical interference with the tenant’s possession and
enjoyment.

At common law, the landlord is not liable for an action in nuisance unless he expressly
covenants to prevent nuisance from other tenants. In Hilton v James Smith & Sons
(Norwood) Ltd ([1979] 2 EGLR 44, CA, L owned a row of shops with a private road (a
cul de sac) giving access to the rear of the shops. T was the tenant of the end of the cul
de sac. It had an easement to use the road for access and delivery but could never use
it because other tenants and people making deliveries to them parked in such a way
as to obstruct the road. The leases of all of the shops contained a prohibition on
parking cars, obstructing the road or causing a nuisance or annoyance to the landlord
or other tenants and to use the road only for delivery purposes. L was liable to T in
nuisance and for breach of the covenants for quiet enjoyment and non-derogation
from grant. L was liable because it had the means of bringing the problem to an end
(an action for nuisance or breach of the express covenant just mentioned) but had done
nothing.

The acts of 3rd parties are not within the scope of this covenant unless the landlord
acquiesces to the action by the third parties or unless the third parties are deemed to
be acting on behalf of or are agents of the landlord.

6.2.1.2. Covenant not to Derogate from Grant

This covenant is that the landlord will let the tenant use the property for which it was
let. Section 65(2) of the Land Act provides that the landlord should:
Not to use or permit any adjoining or neighbouring land that the lessor owns or leases
that would in any way render the leased land or any buildings on the leased land unfit
or materially less fit for any purpose for which they may be used, consistent with the
terms and conditions of the lease.
He cannot for example fence off the property which has been let out as a shop to
prevent customers from accessing it.

In Harmer v Jumbil (Nigeria) Tin Areas Ltd ([1921] 1 Ch 200, CA, L granted T a lease of
certain land for the purpose of storing explosives. L owned nearby land which had
been used for tin mining but it was assumed that the mines had been worked out. T
needed a Government licence to store explosives and it was a condition of the licence

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that there would be no buildings within prescribed distances. L’s successor granted a
lease of the nearby land and the tenant of that land started to work the mines and
proposed to erect buildings so close to the explosives store as to breach the terms of
the explosives licence. T sought and was granted an injunction to prevent the building
work during the term of the current licence on the basis that this would be a breach of
the covenant not to derogate from grant. Younger L.J. explained that the principle
‘merely embodies in a legal maxim a rule of common honesty.’ (p. 225). He continued:
The obligation … must in every case be construed fairly, even strictly, if not narrowly.
It must be such as, in view of the surrounding circumstances, was within the reasonable
contemplation of the parties at the time when the transaction was entered into, and was
at that time within the grantor’s power to fulfil. (p. 226).
The act complained of did not need to involve any physical interference with the
demised property.

In Platt v London Underground Ltd ([2001] WL 172012), LUL granted a lease of a kiosk
to P. The kiosk was in the exit from an underground station. Only people leaving the
station through that exit (there was another) would use the kiosk. P claimed that LUL
only allowed passengers to use the relevant exit during the morning rush hour and at
no other times. Thus, the kiosk was starved of trade. P succeeded in his claim that LUL
had acted in derogation from grant. The surrounding circumstances at the time of the
grant were a strong indicator as to what the parties must have had in their mutual
contemplation. The kiosk relied on passengers going through the exit as its only
source of customers. At the time of the lease, the exit was open for much of the time.
This was plainly important to the tenant. There was nothing in the circumstances at
the time of the grant or in the communications between the parties, or in the express
terms of the lease to indicate that P had accepted a risk that the exit might be closed
most of the time. The parties had contemplated that the exit would be part of the
station operation during the opening hours of the station. Closure of the exit for much
of the time during the lease did amount to a derogation from grant.

Neuberger J. provided some commentary on the law concerning derogation from

grant. There is a ‘very substantial degree of overlap, between the obligation not to
derogate from grant, the covenant for quiet enjoyment, and a normal implied term in
a contract.’ (p. 5) He endorsed the approach of Bowen L.J. in Myers v. Catteson ((1889)

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42 ChD 470 at 481) who said that the aim of the covenant is to give effect to, ‘the
obvious intention of the parties, so as to give the transaction between them a minimum
of efficacy and value which upon any view of the case it must have been their common
intention that it should have.’

The judgment contains a set of principles concerning non-derogation from grant (pp.
4 – 8). The express terms of the lease and the surrounding circumstances at the date of
the lease will be highly relevant in determining whether an act amounts to a
derogation from grant. Where the action complained of is the use of the landlord’s
retained land, the tenant cannot complain of uses to which the retained land could
reasonably be put after the grant of the lease.
When assessing what the parties to a contract actually or must have contemplated, one
should focus on facts known to both parties and statements and communications
between them. A fact which could only have been known to one party could not, save
in very unusual circumstances, be a legitimate part of the factual matrix. A thought
locked away in the mind of the parties, or even perhaps of both parties, cannot normally
be a relevant factor when assessing the parties’ understanding. In English law at any
rate, contract is concerned with communication as well as mutuality.
The Landlord cannot use of adjoining land making demised property less fit for
contemplated purpose. In Aldin v Latimer Clark, Muirhead & Co ([1894] 2 Ch 437) a
landlord granted a lease of property to be used for the purpose of carrying on the
business of a timber merchant. The tenant covenanted not to use the property for any
other purpose. The landlord later erected buildings on the neighbouring land retained
by him which interfered with the flow of air to the sheds and made them less useful
for the tenant’s business. The court held that the right to the flow of air could be an
easement but no such easement had been acquired here. The tenant claimed that this
amounted to nuisance, derogation from grant and breach of the covenant for quiet
enjoyment. The landlord was liable in damages. Per Stirling J:
[W]here a landlord demises part of his property for carrying on a particular business,
he is bound to abstain from doing anything on the remaining portion which would
render the demised premises unfit for carrying on such business in the way in which it
is ordinarily carried on, but that this obligation does not extend to special branches of
the business which call for extraordinary protection.’ (444).
6.2.1.3. Covenant to Repair

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This should be express and is usually not implied. However, common law implies the
obligation on furnished accommodation that it shall be fit for human habitation. The
courts may imply that in order to give business efficacy to the contract.

Section 65(c) of the Land Act also implies the covenant to repair in certain leases. It
provides that: if only part of a building is leased, there is an implied covenant for the
landlord to keep the roof, all external and main walls and main drains, and the
common parts and common installations and facilities, including common passages
and walkways in a proper state of repair.

6.2.1.4. Covenant as to Suitability for Purpose

If any dwelling house, flat, or room is leased, it is implied therein that the house, flat
or room is fit for human habitation at the commencement of the lease and shall be kept
fit for human habitation during the lease.

It is further provided that if the leased premises or any part of them are destroyed or
damaged at any time by fire, flood or explosion or other accident not attributable to
the negligence of the lessee, or lessee's invitees or employees; by civil commotion; or
by lightning, storm, earthquake, volcanic activity or other natural disaster, so as to
make the leased premises or any part of it wholly or partially unfit for occupation or
use, the rent and any contribution payable by the lessee to the outgoings on the
premises or a just proportion of that rent of contribution according to the nature and
extend of the damage sustained shall be suspended and cease to be payable until the
leased premises have been, once more, rendered fit for occupation and use; and if the
leased premises have not been rendered fit for occupation and use within six months
after their destruction or damage, the lessee shall have the option to terminate the
lease after giving one month's notice.

Moreover, if it is an express or implied term of the lease that the leased land or a
building on it may be used for any one specific purpose or purposes, the lessee may
terminate the lease, on giving one month's notice to the lessor, if the land or building
cannot be, or can no longer lawfully be, used for any of those purposes.

6.2.1.5. Covenant To Pay All Rates, Taxes, Dues and Other Outgoings

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Under section 65 of the Land Act, there is implied a covenant on the landlord he is to
pay all rates, taxes, dues and other outgoings that are payable in respect of the leased
land. This does not however extend to what the lease specifies as the obligation of the
tenant/lessee.

Remedies for Breach of Landlord’s Covenants/Obligation

i) An Action in Tort for Trespass

ii) Damages for breach of contract;

iii) Damages for unlawful eviction;

iv) An action for Injunction – Against nuisance (in Brumby v Octavia Hill Housing
Trust [2010] EWHC 1793). A landlord is not usually liable for acts of nuisance
by his tenants unless he has, for example, encouraged to approved of the
nuisance behaviour: see Smith v Scott [1973] Ch 314; Hussain v Lancaster CC
[2000] 1 QB 1 and Mowam v LB Wandsworth [2001] 33 HLR 56. It is, however,
possible for a landlord to adopt the nuisance of a third party if, with actual or
constructive knowledge of the nuisance, he fails to take reasonable steps to
abate the nuisance: Sedleigh-Denfield v O’Callaghan [1940] AC 880.

v) Specific performance;

vi) Self-help in repairing – It is provides in s 65 of the Land Act that If the leased
premises or any part of them are destroyed or damaged at any time by fire,
flood or explosion or other accident not attributable to the negligence of the
lessee, or lessee's invitees or employees; by civil commotion; or by lightning,
storm, earthquake, volcanic activity or other natural disaster, so as to make
the leased premises or any part of it wholly or partially unfit for occupation
or use, the rent and any contribution payable by the lessee to the outgoings on the
premises or a just proportion of that rent of contribution according to the nature and
extend of the damage sustained shall be suspended and cease to be payable until the
leased premises have been, once more, rendered fit for occupation and use.

vii) Terminate the Lease – It is provided in s 65 of the Act that if the leased
premises have not been rendered fit for occupation and use within six months

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 after their destruction or damage, the lessee shall have the option to terminate
the lease after giving one month's notice. If it is an express or implied term of
the lease that the leased land or a building on it may be used for any one
specific purpose or purposes, the lessee may terminate the lease, on giving
one month's notice to the lessor, if the land or building cannot be, or can no
longer lawfully be, used for any of those purposes.

viii) Criminal liability (in England, this is brought under s.1 of the Protection from
Eviction Act 1977).

Tenant’s Convents
6.2.3.1. To Pay Rent if Reserved
Under s 66, there is an implied covenant on the tenant to pay the rent reserved by the
lease at the times and in the manner specified in the lease.

6.2.3.2. To Allow Landlord to Enter into the Premises

Section 65(2) of the land Act provides that there shall be implied in every lease
covenants by the lessee empowering the lessor to either personally or by agents, enter,
the leased land or buildings at any reasonable time for the purpose of inspecting the
condition and repair of the premises, or for carrying out repairs and making good any
defects that it is the lessor's obligation so to do; but in the exercise of that power, the
lessor shall not unreasonably interfere with the occupation and use of the land and
buildings by the lessee.

6.2.3.3. Not to Disclaim Landlord’s Title

The tenant covenants not to disclaim the landlord’s title nor do anything that
prejudices the landlord’s title.

Where a tenant denies title to only a part of the demised premises, then the single
relationship of landlord and tenant has not been disclaimed. In W.G. Clarke Properties
Ltd v Dupre Properties Ltd ([1992] Ch 297), there was a lease of a flat and a courtyard.
The tenant discovered that the landlord was not the registered owner of the courtyard.
It brought proceedings claiming damages. In these proceedings it pleaded that the
courtyard was owned by a third party but that the landlord did have title to the flat.
The landlords brought possession proceedings on the basis that the tenant had

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disclaimed the lease by denying the landlord’s title. It was held that there was no
disclaimer here since the tenant had positively asserted the landlord’s title to the flat
and denied the landlord’s title to only part of the demised premises. The judge left
open the question as to whether the answer might be different if the courtyard had
been capable of being separately let and enjoyed.

6.2.3.4. To use the Property in Tenant-Like Manner and Not to Commit

Waste
Under section 66 of the Land Act, there is an implied covenant for the tenant to use
any land in a sustainable manner and in accordance with any conditions imposed on
the use of that land by the lease, or any written law or any provisions in a grant of a
public land out of which that lease has been created and, in particular, not to cut down,
injure or destroy any living tree on the land unless the purpose for which the land has
been leased cannot be carried out without so doing.

The tenant is required to yield up the land and buildings in the same condition as they
were when the term of the lease began. However, the lessee is not bound to repair
damage or restore the land and buildings to the same conditions they were at the
beginning of the lease if the damage or deterioration of the condition is caused by:

(i) Reasonable wear and tear;

(ii) Fire, flood or explosion or other accident not attributable to the

negligence of the lessee, or the lessee's invitees or employees;

(iii) Civil commotion;

(iv) Lightning, storm, earthquake, volcanic activity or other natural

disaster.

Waste may be voluntary or permissive waste. In Mancetter Developments Ltd v

Garmanson ([1986] QB 212, CA, tenant removed his fixture leaving a gaping hole in the
wall. It was held liable for committing waste.

6.2.3.5. To repair
There is a covenant for the tenant to keep all boundary marks in repair; and also to
keep all buildings comprised in the lease in a reasonable state of repair.

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6.2.3.6. To Pay Service Charges
The tenant is required to pay the electricity and water bills as well as other bills that
are due from his use.

Landlord’s remedies
i) Forfeiture;

ii) Distress for rent;

iii) Damages for breach

iv) Action for arrears of rent

v) Specific performance for the obligation to repair

Freehold Covenant
Agreement Are Enforceable by the Parties
Devolution of Freehold Covenants is governed by a mixture of rules of common law
and principles developed by equity.

The parties are bound by both the positive and negative covenants they enter into
under the law of contract. Thus, if A covenants with B that B will not construct a house
in his (B’s) land, it will be enforced by A. Similarly, if A covenants with B that A will
construct a fence around their common boundary, this will be enforced by B.

For the successors in title to the original parties, in England under s. 56 of LPA 1925,
they may take an immediate or other interest or benefit from the land even though
they have not been named as parties to the conveyance or other instruments. This is
however when the contract is purported to have been made with that unnamed
person (Beswick v. Beswick).

This rigidity has been eased under the Contracts (Rights of Third Parties) Act 1999.
s.10 (2) allows 3rd parties to sue on contract if the contract purports to confer a benefit
upon him.

Transmission of Burdens and Benefits

Transmission of burdens and benefits are based on a mixture of principles of common
law and equity.

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6.3.2.1. At Common law
At common law Burdens cannot run so as to adversely affect the successor in title to the
original covenantor.

On the other hand, benefit of the covenant can pass to the successor in title to the
original covenantor without the need for express assignment, whether positive or
negative (P & A Swift Investment v. Combined English Stores Group plc [1989] AC
632– The covenant was enforced against the assignee of the landlord’s reversion
against the surety).

Under the rule set in the case of Smith & Snipes v. River Douglas Catchment Board
[1949] 2 KB 500, benefits will pass if:

a. It touches and concerns land – It must either affect the land as regard the mode
of occupation, or it must be such as per se, and not merely as from a collateral
sources, affect the value of land;

b. The successor in title must have a legal estate in the land although not necessarily
the same title as the predecessor; and

c. The land to be benefited must, from the deed containing the covenant, be
reasonably identifiable, although such identification need not be express;
extrinsic evidence is admissible to identify the land;

d. The parties must intent that the benefit run with the land (This in England is
now presumed under s. 78 of LPA 1925).

Further, the person seeking to enforce the covenant must have land (i.e. there must be
a dominant and servient tenement – London County Council v. Allen [1914] 3 KB 642).
And the two lands must be sufficiently proximate for the dominant land to be
benefited (The covenant must accommodate the dominant tenement).

6.3.2.2. In Equity
The rule was set in the case of Tulk v. Moxhay (1848) 41 ER 1143. Under the rule, when
a person purchases a property with notice of the covenant, notwithstanding that there
was no assignment of the burden in equity the covenant will run with the land.

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In this case, Charles Augustus Tulk, the owner of several parcels of land in Leicester
Square sold a plot to another party, making a covenant to keep the Garden Square
"uncovered with buildings" such that it could remain a pleasure ground. Over the
following years the land was sold several times over to new parties, eventually to the
defendant. The defendant, who was aware of the covenant at the time of purchase,
refused to abide by the covenant as he claimed he was not in privity of contract and
so was not bound by it. Lord Cottenham LC found in favour of the plaintiff and
granted an injunction to restrain the defendant from violating the covenant.

The Court held that Court has jurisdiction to enforce a contract between the owner of
land and his neighbour purchasing part of it, that the latter shall either use or abstain
from using land purchased in a particular way, is what I never knew disputed...

It has been held that restrictive (negative) covenants are the ones that are covered by
the Tulk v. Moxhay rule. This is because the law wants to limit covenants to make land
more saleable and economically viable (Haywood v. Brunswick Permanent Building
Society (1881) 8 QBD 403. – Mortgagee of an assignee is not bound to keep the
property in good repair; such covenants can only be implied when there is no
requirement for expenditure of money).

In Rhone v. Stevens [1994] 2 AC 310, a covenant to maintain a roof was not binding
upon the successor of the covenantor. “[it is knowledge] imparted at an elementary
stage to every student of the law of real property that positive covenants affecting
freehold land are not directly enforceable except against the original covenantor.”
In registered land, a covenant will not bind the transferee unless it is registered as a notice.
In equity, benefits of covenants run through:

 Annexation
This is a permanent attachment of the benefit of a restrictive covenant to the land. It is
done at the time of making the covenant. In England, statutory annexation (s. 78 LPA
1925) – This is in spite of non-existence of a word annexation (Federates Homes v. Mill
Lodge Properties [1980] 1 WLR 594). In this case, a firm called Mackenzie Hill Ltd
owned a large amount of development land in Newport, north of Milton Keynes. It

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had outline planning permission to develop the land with 1,250 houses. It sold part of
that land to Mill Lodge. The conveyance included a restrictive covenant:

In carrying out the development of the . . . land the purchaser shall not build at a
greater density than a total of 300 dwellings so as not to reduce the number of units
which the vendor might eventually erect on the retained land under the existing
planning consent.

Mackenzie Hill later sold the land they retained in the area to Federated Homes. The
Court of Appeal had (inter alia) to decide whether the above clause effected an
annexation so that on the sale of the ‘retained land’ the right to enforce the covenant
passed automatically to Federated Homes. It was held at the House of Lords that: The
clause effected a valid annexation of the benefit of the covenant to the land owned by
Federated Homes Ltd.

However, if a contrary intention is expressed, there will be no annexation. In Roake v.

Chadha [1984] 1 WLR 409, a clause in a 1934 conveyance expressly stated that 'so as to
bind (so far as practicable) the land hereby transferred into whosesoever hands the
same may come … but so that this covenant shall not enure for the benefit of any
owner or subsequent purchaser of [W Ltd's land] unless the benefit of this covenant
shall be expressly assigned'. An assignment did not expressly contain the restrictive
covenants. It was held that the covenant did not pass.

 Assignment
If annexation is not done at the time of creation, it may be assigned when the land is
transferred. In equity, assignment must be coupled with transfer of land and must be
simultaneous.

(i) Assignment must identify the land to be benefitted

(ii) There will be need for a chain of assignment at every future conveyance to
make it continually enforceable by future transferees.

 A scheme of Development
When land owned by one person is subdivided and sold to different persons. The
covenant entered into for the benefit of the estate must be mutually enforceable. In

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Ellistone v. Recher [1908] 2 Ch 374, it was held that a scheme of development will
create obligations on the land owners where the following conditions are met:

(i) There must be disposal by a common vendor;

(ii) Prior to the sale, the land must have been laid out in lots subject to common
obligations;

(iii) The common vendor must have intended for it to be of common benefit rather
than for himself alone; and

(iv) The land must have been bought in the same footing that the benefit is to be
enforced by the owners of the other lots.

These conditions have been relaxed. Now two conditions are deemed to be relevant
for schemes of development. These are:

a) The area to be affected by the covenant has to be properly identified(Lund v.

Tailor);

b) It must be shown that it was clearly intended to be a scheme for reciprocal

enforcement of obligation (Baxter v. Four Oaks Properties ltd.) – This can be
proved by extrinsic evidence (e.g. the fact that they are all identical).

Reform Proposals in England Regarding Covenants

In England, due to the diversity of rules and the difficulties caused to land
management, a number of reforms have been suggested. These include:

a) Introduction of a new body of law relating to land obligations as a category

of proprietary interest to replace leasehold and freehold covenants.

b) The new category is to cover both freehold and leasehold estates

c) Restrictive covenants should be phased out and replaced by the land

obligations.

d) Land obligations should exist as a legal interest in land but should be capable
of enforcement under equity too.

e) It should be possible to enforce positive obligation such as repairs and

maintenance covenants to benefit the land and not just the parties.
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f) To bind registered land only and should be entered in the land register on
both benefiting and burdened land.

g) There should be no requirement of dominant and servient land.

h) Scope of s. 84 LPA 1925 regarding courts’ power to discharge or modify

restrictive covenants should be extended to cover all obligations in land.

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7. Concurrent and Consecutive
Ownership of Land
Introduction
Land can be owned concurrently by two persons and also in succession where, under
an instrument, on the end of the right of one person, another person is conferred with
the interest.

Co-ownership (Concurrent Ownership)

In the common law, co-ownership refers to that conglomerate of property rights in
one asset, generally in real property, in which there are more owners such as tenants
in common or joint tenants or statutory co-ownership regimes such as condominium
title or strata title.

Co-ownership is ownership of the same property, jointly and at the same time, by
several persons each of whom is privately vested with a share of the right of
ownership. Co-tenancy means the ownership of land by two or more persons in
undivided shares and includes joint tenancy or tenancy in common

Co-ownership is called undivided where the right of ownership is not accompanied

with a physical division of the property.

It is called divided where the right of ownership is apportioned among the co-owners
in fractions, each comprising a physically divided private portion and a share of the
common portions.

Each undivided co-owner has the rights and obligations of an exclusive owner as
regards his share. Thus, each may alienate or hypothecate his share and his creditors
may seize it.

Each undivided co-owner may make use of the undivided property provided he does
not affect its destination or the rights of the other co-owners.

Joint tenancy
7.2.1.1. Meaning of Joint Tenancy

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Joint tenancy means a form of concurrent ownership of land where two or more
persons each possess the land simultaneously and have undivided interest in the land
under which upon the death of one owner it is transferred to the surviving owner or
owners.

7.2.1.2. The Four Unities

 Unity of Possession
Unity of possession is the essential dynamic present in all co-ownerships. Unity of
possession means that each cotenant is entitled to possession of the whole property
and every part thereof, subject to the same right in the other cotenants. There is no
exclusive possession of any particular parcel of land in this case. The co-owners
mutually use and possess the entire land together.

Unity of possession requires that the property be held by one and the same undivided
possession. Unity of possession means that all joint tenants have a common right to
possess and enjoy the property. Possession by one cotenant is presumed to be
possession by all. When one or all of the unities of time, title, and interest are destroyed
the joint tenancy is severed and a tenancy in common results. This result follows from
the rule of law that a tenancy in common requires only one unity, that of possession.

 Unity of Interest
In a joint tenancy, each owner receives the same proportionate and equal share of
ownership. Unity of interest means that the interest of the parties in the subject-matter
is such that they stand or fall together and that judgment against one will similarly
affect the other. Where the court determines a unity of interest exists, several plaintiffs
or several defendants may be considered as a single party for the purpose of making
challenges, or the court may allow additional peremptory challenges and permit them
to be exercised separately or jointly.

There are two aspects to this issue:

(i) Each co-owner must have the same estate. Thus, you cannot have a person
with a 10 year lease sharing the same property at the same time with another
with a 20 year lease. The two interests are not the same.

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 (ii) Each co-owner must have an equal right to enjoy the land. In a Tenancy-in-
Common, the tenants may have equal shares of the property but in a joint
tenancy, each co-owner must have an equal interest in the land.

 Unity of Time
Each owner must receive title at the same time. The unity of time means that the joint
tenants held title to the property at the same moment. It is a characteristic because
each joint tenant receives his/her interest at the same time.

In Hill v. Hill, 1983 OK 81 (Okla. 1983), the court held that, a joint tenancy is created
only when unities of time, title, interest, and possession are present; unity of time
requires interests of joint tenants to vest at the same time.

 Unity of Title
Each owner must receive title on the same deed or document evidencing title under
the same transaction.

If one of the joint tenants sells or conveys the interest created in a joint tenancy to
another person, the joint tenancy is broken, and a tenancy in common is created. Joint
tenants cannot stop another tenant from breaking the joint tenancy.

7.2.1.3. Survivorship
Survivorship is a key distinguishing feature of Joint Tenancy. It is the power of the
successor or successors of a deceased individual to acquire the property of that
individual upon his or her death found only in joint tenancy.

In all joint tenancies, at the death of one of the joint tenants, ownership of the
remaining property passes to the surviving tenants, or successors, who assert the right
of survivorship. This is a powerful legal right because it takes precedence over other
claims upon the property.

When one of the joint tenants dies, the right of survivorship takes effect, passing the
deceased tenant's interest in the property to the other joint tenant or tenants.

Husbands and wives often create joint tenancies for co-ownership of their real
property; under the common law this form of joint tenancy is called a Tenancy by the
Entirety. It is an attractive legal option because of the right of survivorship. Upon one

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spouse's death, the right of survivorship takes precedence over claims on the property
by the deceased person's heirs, beneficiaries, and creditors.

The right passes outside probate—the procedure by which a deceased person's will is
approved—so legal professionals sometimes call joint tenancy a probate avoidance
device. The dissolution of a marriage usually ends any subsequent claim of right of
survivorship.

A joint tenancy continues as long as more than one joint tenant survives. Upon the
death of one tenant, the shares of the other tenants increase equally; in a sense they
absorb the ownership interest of the deceased person. This automatic process
continues until only one surviving joint tenant is left; this survivor becomes the sole
owner of the property.

On survivorship, section 49 of the Land Act provides that “If one of two or more joint
proprietors of any land, lease or charge dies, the Registrar shall, on proof of the death,
delete the name of the deceased from the register by registration of the death
certificate.”

7.2.1.4. Contemporaneous Death of all Co-Owners/ Comorientes

The Latin term commorientes refers to two or more people who die, often in a common
disaster, in circumstances where there is uncertainty as to the order of their deaths.
The cases are a catalogue of shared tragedy, for example where victims succumb to
car accidents, fire, murder, massacre, shipwreck, exploding bombs, gas poisoning etc.

The difficulty in determining the order of death in such cases causes legal problems
of various sorts. Where the parties hold property under a joint tenancy, in cases of
commorientes the problem is, of course, that one cannot determine which joint tenant
was the last survivor.

The common law position would be that there would be … In Bradshaw v Toulmin,
(1784) 2 Dick 633; 2I E.R. 417, the leading case in relation to commorientes and joint
tenancies, Lord Thurlow stated that if two persons, being joint tenants, perish by one
blow, the estate will remain in joint tenancy in their respective heirs.

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However, the English LPA 1925 s 184 provided that, subject to a few qualifications,
for the purposes of the ownership of property, the older is presumed to have died first
and the younger to have survived.

In effect, on a joint death, the younger does for a second become the owner of the
entire property which will then pass to the younger's heirs under her/his will or on
intestacy.

This did not apply to Joint Ownership by spouses on intestacies. In this case, it is
deemed instead that neither survived the other. If the spouses die in the same event,
whatever their respective ages, neither will have survived the other and neither will
inherit from the other. The property will go to the respective families.

Tenancy-In-Common
Tenancy in common is a type of shared ownership of property, where each owner
owns a share of the property. Unlike in a joint tenancy, these shares can be of unequal
size, and can be freely transferred to other owners both during life and via a will. Even
if owners own unequal shares, however, all owners have the right to occupy and use
all of the property. If A and B own a house as tenants in common, there is no problem
if A owns 1/3 of the house and B owns 2/3, and no problem if A decides to sell his
share to C.

A tenant in Common is one of the ways to hold title, to own property, by two or more
individuals. Sometimes it is referred to as Tenancy in Common. There is no limit to
the number of individuals who can hold title to one piece of real estate. A property
held by tenants in common can be owned by two owners or 100+ owners.

Dissolving Tenancy-in-Common
There are various modes of dissolving a tenancy-in-common.

(i) One or more co-tenants can buy out the others;

(ii) The property can be sold and the proceeds distributed equitably (on the basis
of the distinct shares) among the owners.

(iii) A partition action can be filed. This involves going to court and asking to sell
the property under court order and distribute the proceeds among the

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 owners. When a co-tenant dies, you may see a partition action filed when an
heir may want to sell and the other co-tenants do not.

Difference between Tenancy-in-Common and Joint

Tenancy
A number of distinction exists between joint tenancy and tenancy-in-common.

(i) In tenancy-in-common, only one unity is required; the unity of possession,

while in joint tenancy all the four unities must exist.

(ii) In Tenancy-in-common, ownership can be held in equal or unequal shares. For

example, Roy could hold 50% ownership, Mary 25% and Smith 25%. In Joint
tenancy, there is no share for any joint owner; all of them owner the entire
property together.

(iii) Upon death, the interest of the deceased joint tenant will pass by survivorship
to the remaining co-tenant. In tenancy-in-common, if a co-tenant dies, his
potion passes by succession to his legal heirs. E.g. Mary, Smith, and Roy are
tenants-in-common with each having an interest of 50%, 25% and 25%. If Roy
dies and it is a joint tenancy, the entire property vests in Mary and Smith while
if it is a tenancy-in-common, Mary would still have her 50% and Smith 25%
interest while Roy’s 25% interest will go to his heirs either by will or through
the operation of rules of interstate succession.

How Joint Tenants can Become Tenants-in-Common

As joint tenancy requires four unities (AG Securities v Vaughan and others; Antoniades v
Villiers and another [1988] 2 All ER 173.) unlike tenancy in common, once any of the
four unities, except the unity of possession, is lost, then the property is held jointly as
a tenancy-in-common. In Porter v. Porter, 472 So. 2d 630 (Ala. 1985), the court held
that, at common law a joint tenancy could be severed by destruction of one of the four
unities, that is, time, title, interest, and possession.

Successive/Consecutive Ownership of Land

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According to the doctrine of estates, which provides the theoretical underpinnings of
modern Land Law, beside co-ownership, a number of estates could exist
simultaneously with regard to the same piece of land.

Land could be settled upon one person for life, the remainder to a second person in
fee tail, and the remainder to a third person in fee simple. The interests of the second
and third persons are called future interests, which are considered consecutive
interests in the land.

Life Estate
A common type of successive interest is life estate. In common law, a life estate is the
ownership of land for the duration of a person's life. In legal terms it is an estate in
real property that ends at death when ownership of the property may revert to the
original owner, or it may pass to another person. The owner of a life estate is called a
"life tenant".

Although the ownership of a life estate is of limited duration because it ends at the
death of the person who is the "measuring life", the owner has the right to enjoy the
benefits of ownership of the property, including income derived from rent or other
uses of the property, during his or her possession.

Because a life estate ceases to exist at the death of the measuring person's life, this
temporary ownership agreement cannot be left to heirs (intestate) or devisees (testate),
and the life estate cannot normally be inherited.

At death, the property involved in a life estate typically falls into the ownership of the
remainderman named in the life estate agreement.

In Kenya, the Land Act provides for the creation of a leasehold estate for the life of the
lessee in section 56.

Common Law Position on Successive Ownership

Common law did not recognize a life estate in personal property. Such interests were
cognizable in equity. Thus, although life estates in real estate are still created today, the
life estate is more commonly used in trust instrument.

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The law of English law no longer recognises the life estate at law in relation to land;
instead the holder of legal title to the land (whether the freehold fee simple or a lease)
will hold that land on trust first for the life tenant and then for the remainderman.

English Law Concurrent and Successive Ownership

Under the Trust of Land and Appointment of Trustees Act 1996, in England, all co-
ownerships and successive ownerships can exist as trusts of land and are therefore
regulated under the Act.

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8. Encumbrances Over Land:
Charges/Mortgages
Introduction
An encumbrance is a right to, interest in, or legal liability on real property that does
not prohibit passing title to the property but that diminishes its value. Encumbrances
can be classified in several ways. They may be financial (e.g. liens) or non-financial
(e.g. easements, private restrictions). Alternatively, they may be divided into those
that affect title (e.g. lien, legal or equitable charge) or those that affect the use or
physical condition of the encumbered property (e.g. restrictions, easements,
encroachments).

Encumbrances include security interests, liens, servitudes (e.g. easements, wayleaves,

real covenants, profits a prendre), leases, restrictions, encroachments, and air and
subsurface rights. Also, those considered as potentially making the title defeasible are
encumbrances, e.g. charging orders, building orders and structure alteration.

In this part, we shall be looking at charges.

Mortgages and Charges

Mortgages and Charges are borrowing commercial transactions. Before the new land
laws, whereas mortgages applied to such transactions created under the ITPA charges
were a feature of similar transactions carried out pursuant to the provisions of the
LRA to the extent that the obligations and duties created restricted the powers of the
registered proprietor from dealing freely with his property.

Transactions in mortgages and charges amount to burdens on land or on property

offered as security and in especially a capitalist economy they have assumed great
significance as a way of accessing credit facilities from financial institutions or with
their help each property owner may develop their properties using their titles as
security in consideration for the loan or credit advanced.

The transactions involved require that property owners desirous of accessing funds
approach financial institutions that are willing to accommodate them financially to a
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certain level agreeable on the footing of security to be offered by property owners in
the form of the titles that they hold.

Historical Origins
The idea of mortgages is said to have originated from ancient Roman law and practice
although it has also been accepted that Mohammedan Law as well as common law
has traits which point to these forms of transactions. Under ancient Roman Law two
forms of Mortgage transactions can be identified the first aspect of the mortgage
institution to develop under this law was the form that was known as the Fiducia as
a form of mortgage this involved a fiduciary relationship between a lender and a
borrower whereby the property in question was given to the lender upon default such
property would be forfeited to the lender regardless of the value comprised.

The second aspect of the mortgage institution under Roman law was identified as the
Pigmus which entailed a transfer of possession of the property pledged as security but
without the element of forfeiture as was the case in the first example. Upon default
the property in question was merely sold and not forfeited so that there was a
possibility of the borrower getting back something that in the event that the property
fetched something more than was owed.

There was a third realm distinct from the first two with different rules being applicable
though it is not very clear how it worked but the Hypotheca involved a pledge without
the need for the property being delivered instead what the creditor had was a kind of
power of sale which could be exercised in the event of there being a default. When
such a power was invoked the duty to render accounts for the proceeds from such a
sale arose and it was a much stricter requirement than the practice involved in the
Pigmus.

Under Mohammedan Law the starting point is that the idea of charging interest or
having any gain over and above what has been extended as the principal amount is
offensive to the Islamic religion. Mohammedan law does not accommodate the
element of charging interest. Their equivalent of mortgage institutions is what they
call the Bye-Bilwafa and this is what comes close to a mortgage institution and the
borrower pledges his property to the lender for the money for sums advanced with
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the promise of repayment for the principal sum that is advanced. The lender has a
right to take any benefits such as rents and profits that accrue from such a property
until such a time that the amount advanced will have been fully recovered even
though there is no duty to render accounts the fact that this is a religious arrangement
and is premised on religious doctrine, the expectation is that utmost good faith is
expected on the part of the lender to make this system work so that he will take no
more than his entitlement after which he will turn the property over to the owner.

At Common Law, the institution of mortgage took the form of the pledge of a property
to the lender coupled with the transfer of possession rather than title. Originally the
mortgage institution at common law manifested itself by way of pledge of a property
to the lender but not the title thereto. This eventually developed into what is known
as the English mortgage which is a form of conveyance of the property in question
with the understanding that the mortgagee will re-convey the property in question to
the mortgagor upon payment of the principal sum and any interest that may have
accrued. Over the years the institution developed in various forms so that by the 12th
century two forms of pledges evolved e.g. a living pledge and a dead pledge.

The living pledge otherwise known as Vivum Vadium was an arrangement requiring
the lender to take possession of the property to recover what was owed in the form of
principal sum advanced together with interest on such loan and thereafter discharge
the property.

In the case of the dead pledge (Mortum Vadium) the lender received benefits from the
property towards the discharge of the element of interest only leaving the principal
sum to the responsibility of the borrower so that any benefits to the property was to
be applied towards discharging interest accrued rather than the principal amount
advanced.

Because of the practice as embraced under common law a lot of injustice and
unfairness characterised the operations of the mortgage institutions and due to this,
equity intervened to reign in on the perceived harshness of the mortgage institution
as operated under common law for instance under common law upon a borrower
defaulting in his paying obligations the element to forfeiture of the property which

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had been offered as security for the loan was very much the preferred remedy and
this meant that the borrower would lose his interests and rights in the property
regardless of its value and this in situations that involved very low levels of credit
represented injustice and so equity intervened to put straight the underlying concepts
behind these forms of mortgage transactions and in doing so it was guided by the
principle that once a mortgage always a mortgage and in seeking financial
accommodation the property owner is not saying that he has given up his rights and
interests and is ready to forfeit. On the contrary the understanding is that here is
somebody who has property but lacks credit with which to develop his property and
is merely seeking some funds to develop his property with the understanding that the
property will be turned over to him as soon as he makes arrangements to repay and
common law should not make this hard. Equity intervened to proclaim the principle
that once a mortgage always a mortgage meaning the right of the property owners
should not be trampled on.

The interests and rights in the property were merely confined to that of affording
security that the lenders principal sum would be repaid and not that he would seize
and take possession and deprive the property owner of the property and this was the
starting point for the courts of chancery. They developed certain rules which guided
the activities and powers or the limits within which the parties could exercise their
respective rights in connection with the arrangements. Failure for the borrower to pay
on the agreed date did not extinguish their interests in the property and therefore it
did not necessarily have to cause the borrower to forfeit his property to the lender and
by applying these rules the courts of chancery developed the equity of redemption
and the Equitable Right to Redeem.

Equity of Redemption gave the mortgagor a general right to redeem his property
on/or before the actual date of redemption whereas the equitable right regime gave
the borrower what was a form of grace period which extended long past the actual
contractual date of redemption, for the borrower enjoyed a right to redeem the
property even long after the expiry of the agreed date of redemption. A borrower did

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not have to live in mortal fear of losing his property merely because he had failed to
meet the deadline as set in the contractual date of redemption.

Distinction between Mortgage and Charge

The statutory definition of mortgages and charges were found in the ITPA and the
LRA under the repealed land laws. Section 58 of ITPA defined mortgage as a transfer
of security in immovable property for the purpose of securing payment of money
advanced by way of a loan in existing of a future date or the performance of an
engagement which may give rise to a pecuniary liability.

The Land Registration Act defined a "charge" as:

 An interest in land or a lease securing the payment of money or money's worth

or the fulfilment of a condition;

 A sub-charge; and

 The instrument creating a mortgage or other charge.

Requirement for Creating a Charge

There are certain general principles that apply to charges and they are essentially
statutory requirements. Firstly, a Charge must be evidenced in writing. Any
purported instrument that is intended to pass as charge/mortgage is ineffective unless
it is in written form.

Secondly, a Charge has to be in a prescribed form or instruments. This is stipulated

under s 79 of the Land Act.

The instrument has to contain a special acknowledgement that the chargor

understood the effect of that section, and the acknowledgement had to be signed by
the chargor or, where the chargor was a corporation, the persons attesting the
affixation of the common seal.

The charge is completed by its registration as an encumbrance and the registration of

the person in whose favour it is created as its proprietor and by filing the instrument.

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The Registrar cannot register a charge, unless a land rent clearance certificate and the
consent to charge, certifying that no rent is owing to the Commission in respect of the
land, or that the land is freehold, is produced to him or her.

A charge shall have effect as a security only and shall not operate as a transfer.

A date for the repayment of the money secured by a charge may be specified in the
charge instrument, and if no such date is specified or repayment is not demanded by
the charge on the date specified, the money shall be deemed to be repayable three
months after the service of a demand, a written, by the chargee.

There must a disclosure of the nature of the property being charged whether it is
freehold or leasehold, a statement regarding the land reference number and a
description, there must be an indication of the amount advanced, the lender must be
named and described, there must be an acknowledgment of the receipts of the loans
advanced, a covenant for repayment of the advanced loans and the rate of the interests
to be paid must be specified any special arrangements agreed by the parties must be
disclosed and there must be a charging clause which binds the borrower to repay the
sums involved plus interests. The charging clause should take the form of for instance
for the better securing of the said facility or loan, I so and so charge my property etc.

The obligations of the parties are standard and the lender is confined to having the
security and realising it in case of default or discharging the charge and making over
the property back to borrower if security offered has been dealt with. The bulk of
obligations are with the borrower if the transaction is to work along the rules created.
The borrower must honour his obligations which may have arisen prior to the charge.

The borrower must also pay all rates and taxes because the question of ownership
remains with him and he must ensure that the property is in good repairable condition
a requirement meant to safeguard the lender’s interest so that it does not lose value.
Property value is central to the institution since for the statutory powers of sale bank
on the property being the same or better than when the transaction was done.

Applicable Statutes Affecting Charges

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A number of statutes are applicable to charges besides the Land Act and Land
Registration Act. The Banking Act, Central Bank of Kenya Act, are all relevant. They
have specific provisions which apply in the event of there being such transactions
between the parties.

Under the Central Bank of Kenya Act there is a requirement that lending institutions
must take security in the course of advancing loans to borrowers. The Banking Act
Cap 488 initially appeared not to accommodate this particular requirement of insisting
of security before any loans are advanced and prior to an amendment where Section
2 provided that the lending was to be done at the risk of individual banks but this was
altered by Act No 9 of 1999 which made the security mandatory and the change came
after traumatising experiences when a number of indigenous banks went under or
collapsed without having anything to turn to or to enable them realise their security
so that particular loophole has since been sealed.

Subsequent Charges
A Proprietor whose land or lease is subject to a charge may create a second or
subsequent charge in the same manner as the first charge and the same provisions
shall apply, but any sale under the power expressed or implied in any such charge
shall be expressed to be subject to all prior charges unless all those charges have been
discharged.

Where a second or subsequent charge is to be created, the consent of the first charge
shall be obtained before the second or subsequent charge is created.

If a charge contains a condition, express or implied by the borrower that the borrower
will not, without the consent of the lender, transfer, assign or lease the land or in the
case of a lease, sublease, no transfer, assignment, lease or sublease shall be registered
until the written consent of the lender has been produced to the Registrar.

The principle difference is that in a mortgage the title to the property is the security
There shall be included, in an instrument of charge, securing the fulfilment of a
condition or the payment of an annuity or other periodical payment not of the nature
of interest on a capital sum, such provisions as the parties think fit for disposing,

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subject to application of purchase money by the charge, of the money which may arise
on the exercise by the chargee of his or her power of sale, either by setting aside the
proceeds of sale or part thereof and investing it to make the future periodical
payments, or by payment to the chargee of such proceeds or part thereof to the extent
of the estimated capital value of the chargee’s interest, or otherwise.

Redemption
Historically a mortgagor (the borrower) and the mortgagee (the lender) executed a
conveyance of legal title to property in favour of the mortgagee as a security for the
loan. If the loan was repaid, then the mortgagee would return the property; if the
property was not repaid, then the mortgagee would keep the property in satisfaction
of the debt.

The equity of redemption was the right to petition the courts of equity to compel the
mortgagee to transfer the property back to the mortgagor once the secured obligation
had been performed as was held in the case of Santley v Wilde (1899) 2 Ch 474.

Traditionally, the courts have been astute to ensure that the mortgagee; did not
introduce any artificial stipulation into the contractual arrangements to impede a
mortgagor’s ability to satisfy obligation and reclaim their property. Such impediments
are “clogs” on the equity of redemption, and the courts of equity were particularly
astute to strike down the provision which was, or in later cases which might be a clog.
The clogs in mortgage were dealt with in the case of Jones v Murgan (2001) EWCA
CIV 995 at para 50.

An equity of redemption is a mere creature of a court of equity founded on this

principle, that as a mortgage is a pledge for securing repayment of a sum of money to
the mortgagee, it is but natural justice to consider the ownership of the land as still
vested in mortgagor subject only to the legal title is necessary for his security.

‘Once a mortgage always a mortgage’ is a universal rule in equity. The doctrine of

redemption upholds the equity maxim of ‘equity abhors forfeiture and regards
substance rather than the form’. This doctrine is applied in Kenyan courts in mortgage
disputes.

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9. Servitudes over Land: Easements and
Profits
Servitudes
Servitude is a device that ties rights and obligations to ownership or possession of
land so that they run with the land to successive owners and occupiers.

In contemporary property law, servitudes allow people to create stable long-term

arrangements for a wide variety of purposes, including shared land uses; maintaining
the character of a residential neighbourhood, commercial development, or historic
property; and financing infrastructure and common facilities.

The owner of property burdened by a servitude cannot unilaterally terminate the

servitude or transfer the property free from the servitude without the consent of all
the beneficiaries. Thus, whether or not they expressly agree to its terms, subsequent
owners and occupiers are bound to follow the servitude.

Land-use arrangements implemented by servitudes range from simple driveway

easements and covenants prohibiting non-residential use of subdivision lots to
complex declarations that provide for the physical and governmental infrastructure
for condominiums, planned developments, or private towns. Servitudes usually, but
not always, involve two or more parcels of land, one of which is burdened and the
other benefited by the servitude.

In general, there are three basic types of servitudes: easements, profits and restrictive
covenants (addressed in part on covenants over land).

Easements
Is defined in section 2 of the Land Act of 2012 which states that:
"Easement" means a non-possessory interest in another's land that allows the holder to
use the land to a particular extent, to require the proprietor to undertake an act relating
to the land, or to restrict the proprietor's use to a particular extent, and shall not include
a profit.
This essentially makes easements to be capable of being either positive where they
allow use of another’s land in a particular manner or negative where they introduce

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an element of restraint and restrict an owner from using his land in a particular
manner.

Essential Elements of an Easement

Under section 136 of the Land Act 2012 for the existences of an easement there are 4
essential elements. These were also elaborated in the case of Re Ellenborough Park
(1955). Here, parties claimed a public right to wander through the grounds of the park.
Lord Evershed MR said:
For no such right can be granted (otherwise than by Statute) to the public at large to
wander at will over an undefined open space, nor can the public acquire such a right by
prescription.’ and ‘the right conferred no more amounts to a joint occupation of the park
with its owners, no more excludes the proprietorship or possession of the latter, than a
right of way granted through a passage, or than the use by the public of the gardens of
Lincoln’s Inn Fields ... amount to joint occupation of that garden with the London
County Council, or involve an inconsistency with the possession or proprietorship of
the council as lessees.
Under the decision, to qualify as an easement:

(i) There must be a ‘dominant’ and ‘servient’ tenement;

(ii) The right must ‘accommodate and serve’ the dominant tenement;

(iii) The dominant and servient tenements must be owned by different persons; and

(iv) The easement must be capable of forming the subject matter of a grant.

9.2.1.1. There Must Be a Dominant Tenement and a Servient Tenement

Easements are rights which exist for the benefit of one piece of land and are exercised
over another. This means that there must be land that is benefited, the dominant
tenement, and land that is burdened, the servient tenement. The creation of easements
for land not yet identified is not possible (London & Blenheim Estates (1993)).

9.2.1.2. The Tenements Must Be Owned By Different Persons

The dominant and servient tenements must not be both owned and occupied by the
same person (Roe v. Siddons (1888)).

Notable however, there is nothing to stop a tenant enjoying an easement over land
retained by the landlord, and vice versa, because, in that situation, the land is not
owned and occupied by the same person (Wright v. Macadam, [1949] 2 All ER 565;

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Bratt’s Ltd v. Habboush (1999). Both parties own an estate in the land to which the
benefit and burden of the easement can be attached.

However, should the occupier be only a licensee, no easement can be created between
him and the licensor, since a licensee owns no estate in the land.

Finally, if the dominant and servient tenements come into the same occupation, but
not also the same ownership, the easement is suspended for the duration of the
common occupation and may be revived thereafter (Canham v. Fisk (1831)).

9.2.1.3. Easement Must Accommodate the Dominant Tenement

Easements are rights which attach to “land” and not to persons. Thus, any alleged
easement must confer a benefit on the land as such, and not merely on the person who
currently own the land.

The following guidelines may help to determine whether an alleged easement is of a

sufficiently proprietary nature:

(i) The servient tenement must be sufficiently proximate i.e. near, to the
dominant tenement to be able to confer a benefit on it. The two tenements
need not be adjacent, or share a common boundary, but in general, the more
physically separate the two properties, the less likely it is that a court would
regard an alleged easement over one as benefiting the other.

(ii) The alleged right must not confer a purely personal advantage on the owner
of the dominant tenement. For example, in Hill v. Tupper (1863), the owner of
a canal granted the plaintiff the right to put pleasure boats on the canal for
profit, but this was held to be a personal advantage as it was not sufficiently
connected with that land so as to amount to an easement. However, it is not
the commercial nature of the right that is important, but whether the
commercial advantage endures for the land or for the person who owns it. In
London & Blenheim Estates v. Ladbroke Retail Parks (1992)”, it was accepted that
a right to park on adjoining land and to walk across it with shopping trolleys
was capable of existing as an easement for the benefit of the dominant
tenement on which there was a supermarket.

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 (iii) It is unlikely that a right which confers a purely ‘recreational user’ on the
dominant tenement will be accepted as an easement e.g. a right to wander
over open countryside would probably not be an easement. However, only a
‘pure and undefined’ recreational use is suspect, so in Re Ellenborough Park, a
defined right to enjoy an enclosed private park was an easement because the
park was created for the very purpose of enhancing the utility of the few
private houses which had access to it.

9.2.1.4. Easements must be Capable of Forming the Subject Matter of a

Grant
This is an ill-embracing criterion and one where the court enjoys considerable
discretion. The point is that every easement must be capable of being expressly
conveyed by deed (even if it is created in some other way): it must ‘lie in grant’. What
this means in practice is that there are certain types of right which previous case law
has suggested are intrinsically unsuitable for inclusion in the list of easements as they
could not have been “granted”. However, previous case law is not always decisive
and each situation must be judged on its merits. The following points being guidelines
only, arise from the case law:

(i) An easement cannot exist unless there is somebody legally competent to

create an easement e.g. no easement can exist where the purported grantor is
a limited company having no power to grant easements under Articles of
Association.

(ii) Likewise, an easement cannot occur unless there is a capable grantee i.e.
somebody in whose favour an easement may be legally granted.

(iii) The right must be capable of clear description and precise definition,
principally so that the servient owner may know the extent of the obligation
e.g. in Re Aldred (1610), a right to good view could not exist as an easement, as
a ‘good view’ was simply too indefinite.

(iv) It is apparent that ‘the general nature’ of an easement is not cast in stone and
may change over time as the use and occupation of land changes. A court
must be satisfied that the alleged easement will not affect the future use and

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 enjoyment of the servient tenement in an unwarranted manner e.g. it is
unlikely that a court will recognise new easements that require the servient
tenement owner to spend money as in Phipps v. Pears [1964] EWCA Civ 3. The
recognised exception to this is the ‘easement of fencing’, whereby the servient
tenement owner is required to maintain a boundary fence e.g. “Crow v. Wood
[1971] 1 QB 77.

Again, a court is reluctant to recognise an easement which gives the dominant

tenement owner exclusive occupation of the servient tenement i.e. equivalent
to a right of ownership of that land e.g. in Hanina v. Morland (2000), the alleged
right to use the flat roof of neighbouring land could not be an easement
because it was equivalent to ownership. However, following London &
Blenheim Estates v. Ladbroke, it is now clear that it is a question of degree in each
case whether the dominant rights are so extensive as to prevent them being
recognised s easements. So, in that case, a right to park on the servient land
could exist as an easement, even if changes were made for parking, provided
that exclusive occupation was not given.

It is apparent, then, that flexibility is inherent in the Ellenborough conditions, especially

in the fourth criterion and courts also appreciate that “the recognised categories of
easement are not closed” and “modern” rights have been recognised as appropriate
to the time in which the issue arises.

Creation of an Easement
9.2.2.1. Statutory Grants
Easement are created by statutory grants through an instrument in the prescribed
form.

9.2.2.2. Reservation
In conveying land by deed, the grantor may reserve certain easement rights for
himself over the land that he transfers. For example, it may be created in the following
terms: “I convey fee interest in Lot 1 to you, Grantee, but I, Grantor, reserve a non-
exclusive easement for ingress and egress over the driveway located on Lot 1.”

9.2.2.3. Easement by Necessity

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When property is divided in a way that leaves a part of the property without access
to a road (i.e., landlocked), an easement of ingress and egress (“way by necessity”) is
implied across the other part(s).

An easement by necessity exists only as long as the need exists. In other words, if the
landlocked property later has direct access to another public road, the prior implied
easement by necessity would go away.

9.2.2.4. Prescription
Analogous to adverse possession, it is acquired by the operation of prescriptive laws
and the provisions of S. 32 and 38 of Limitation of Action Act are relevant.

If a right has been exercised for so many years for this purpose, an easement, though
not expressly created, is created by prescription. For example: Joe’s property is located
between Sally’s home and the park. Every day Sally walks across Joe’s property with
her dog to get to the park. Every day Sally walks back from the park across Joe’s
property back home. Sally has been doing this for 30 years (very old dog). Sally’s
argument that she has an easement by prescription would flow from this type of fact
pattern.

9.2.2.5. By Statute
Occasionally, an Act of Parliament may determine that a local authority, a corporation,
or even a private individual shall be entitled to the benefit of an easement.

Easements as Overriding Interests

Under provisions of section 28, it is clear that easements will qualify as interests of
overriding nature examples envisaged are a right of way or right to natural right.

Termination of an Easement
Various modes of terminating including:

9.2.4.1. Executed Release

The owner of the dominant tenement may release the servient tenement by executing
a release. If the easement was formally created and registered, then the release must
be executed in the prescribed form.

9.2.4.2. Occurrence of some Condition Precedent

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If there is a contemplated event of which the occurrence is to lead to the termination
of an easement, then it shall be terminated on the happening of that event. If the
easement is granted for a term of years, at the end of the period prescribed, the
easement will be terminated.

9.2.4.3. Through a Court Order

A person may apply to court for an order terminating an easement.

9.2.4.4. Where the Easement ceases to have any Practical Benefit

An easement is meant to confer a right to a person other than the owner of the property
so if the benefits cease, it should not exist. Termination occur where no injury occur to
the beneficiary of such a right.

Profits
Definition
A profits is a right to go on right of another, to take a particular substance from that
land whether it is the soil or products of the soil. At once it becomes clear that unlike
an easement, a profit entails the taking of something from another’s land, something
capable of ownership that is taken from the servient tenement.

Some of the classic rights include:

 Rights of pannage (to turn out pigs to eat acorns etc);

 Rights of turbary (turf cutting);

 Rights of estover (to collect wood);

 Rights of piscary (fishing) etc.

A profit exists in relation to specified piece of land which is the servient tenement. The
point of departure between easement and profits is that whereas easement must be
appurtenant to a servient and dominant tenement, a profit need not have a servient
tenement. The beneficiary can come from wherever and may not even be a land owner
at all.

Types of Profits
A profit a prendre may be Appurtenant or in Gross.

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9.3.2.1. A profit a prendre Appurtenant
A profit a prendre appurtenant is a right the benefit of which is attached to a particular
piece of land, in the same way as an easement. It cannot be registered with its own
title.

9.3.2.2. A profit a Prendre in Gross

A profit a prendre in gross is a right not attached to the ownership of any particular
piece of land. The owner of the profit may not own any land at all and may dispose of
the profit independently from any land they do own. A profit a prendre in gross may
be substantively registered with its own title and this is the subject of this guide.

Because different profits a prendre in gross may be granted over the same land to take
different things, or to take the same thing at different times, there may be more than
one profit a prendre in gross affecting the same land.

A profit a prendre in gross may be the subject of notice in the register of the affected
land, without being registered with its own title or, if the affected land is not
registered, the subject of a caution against first registration.

Nature of a Profit a Prendre

A profit a prendre is a right to take something from another person’s land. This could
be part of the land itself, such as peat; something growing on it, such as timber or grass
(which can be taken by the grazing of animals); or wildlife killed on it, for example by
shooting or fishing.

The thing taken must be capable of ownership, so a right to use land in some way, or
to take water from a natural feature, cannot be a profit.

Creation of a Profit
A profit may be created:

9.3.4.1. By an Express Grant

Where it is created by an express grant, the instrument granting the profit must specify
how the profit is to be enjoyed, whether it is to be enjoyed alongside with other
similarly placed beneficiaries.

9.3.4.2. By Prescription.
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Prescription may also lead to acquisition of the profit just like in the case of easements.

Termination of Profit
There are 3 ways in which a profit can be brought about:

9.3.5.1. Unity of Seisin

This involves acquisition of ownership or the servient tenement by the owner of the
profit at which point the question of enjoying the profits ceases. Enjoyment of profit
presupposes going to another person’s land. Any rights on a servient tenement for the
benefit of a dominant tenement or otherwise are extinguished if the servient tenement
comes into the ownership of the beneficiary. Where profit is pertinent to land it
terminates through unity of both tenements.

9.3.5.2. Release
This occurs where there is a duly executed document evidenced in writing.

9.3.5.3. Alteration of the Dominant Tenement

If a profit is appurtenant, alteration of the dominant tenement in such a way that it
cannot support the exercise of such a right, the profit is terminated. So, the alteration
must be such that it alters the nature the dominant tenement and is completely
overhauled and there is a presumption that any right that existed must be
distinguished.

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10. Temporarily Restraints: Caveats,
Inhibitions, and Restrictions
Inhibitions
Under section 68 of the LRA 2012, the court may make an order (hereinafter referred
to as an inhibition) inhibiting for a particular time, or until the occurrence of a
particular event, or generally until a further order, the registration of any dealing with
any land, lease or charge. A copy of the inhibition under the seal of the court, with
particulars of the land, lease or charge affected, shall be sent to the Registrar, who shall
register it in the appropriate register.

An inhibition shall not bind or affect the land, lease or charge until it has been
registered.

The effect of inhibition was that So long as an inhibition remains registered, any
instrument that is inconsistent with the inhibition shall not be registered.

The registration of an inhibition could not be cancelled except in the following cases—

 On the expiration of the time stated in the inhibition;

 On proof to the satisfaction of the registrar of the occurrence of an event stated

in the inhibition;

 On the land, lease or charge being sold by a charge, unless such sale is itself
inhibited; or

 By a consequent order of the court.

Caution
A caution is defined in section 2 of the Land Registration Act 2012 to mean:

(a) A notice in the form of a register to the effect that no action of a specified nature
in relation to the land in respect of which the notice has been entered may be
taken without first informing the person who gave the notice; or

(b) A caveat.

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 Lodging of Caution
Under s 71 of the LRA 2012 the following persons may lodge a caution:

a) Persons who claim the right, whether contractual or otherwise, to obtain an

interest in any land, lease or charge, capable of creation by an instrument
registrable under the LRA;

b) Persons entitled to a licence; or

c) Persons who present bankruptcy petitions against the proprietor of any

registered land, lease or charge.

These persons may lodge a caution with the Registrar forbidding the registration of
dispositions of the land, lease or charge concerned and the making of entries affecting
the land lease or charge.

A caution may either

• Forbid the registration of dispositions and the making of entries; or

• Forbid the registration of dispositions and the making of entries to the extent
expressed in the caution.

A caution has to be in the prescribed form. The Registrar may require the cautioner to
support the caution by a statutory declaration.

The Registrar may reject a caution that is unnecessary or whose purpose can be
effected by the registration of an instrument under the Act. The caution shall be
registered in the appropriate register.

Notice of Caution
The Registrar must give notice, in writing, of a caution to the proprietor whose land,
lease or charge is affected by the caution.

Effect of a Caution
A disposition that is inconsistent with the caution shall not be registered while the
caution is still registered except with the consent of the cautioner or by the order of
the court.

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 Withdrawal and Removal of Caution
A caution may be withdrawn by the cautioner or removed by order of the court or, by
order of the Registrar.

The Registrar may remove a caution after serve notice on the cautioner warning the
cautioner that the caution will be removed at the expiration of the time stated in the
notice. If the cautioner does not raise any objection, at the expiry of the time stated,
the Registrar may then remove the caution.

If the cautioner objects to the removal of the caution, he must notify the Registrar, in
writing, of the objection within the time specified in the notice, and the Registrar will
make such order as considered fit after hearing the parties. He may in the order
provide for the payment of costs.

After the expiry of thirty days from the date of the registration of a transfer by a
chargee in exercise of the chargee’s power of sale under the law relating to land, the
Registrar shall remove any caution that purports to prohibit any dealing by the
chargee that was registered after the charge by virtue of which the transfer has been
effected.

On the withdrawal or removal of a caution, its registration shall be cancelled, and any
liability of the cautioner previously incurred under section 74 of the LRA shall not be
affected by the cancellation.

The Registrar may refuse to accept a further caution by the same person or anyone on
behalf of that person in relation to the same matter as a previous caution.

Any person who lodges or maintains a caution wrongfully and without reasonable
cause shall be liable, in an action for damages at the suit of any person who has
sustained damage, to pay compensation to such person.

Restrictions
Definition
"Restriction" is defined in s 2 of the LRA as an interest registered under section 76 and
includes the Registrar's caveat.

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Under section 76, for the prevention of any fraud or improper dealing or for any other
sufficient cause, the Registrar may, either with or without the application of any
person interested in the land, lease or charge, and after directing such inquiries to be
made and notices to be served and hearing such persons as the Registrar considers fit,
make an order prohibiting or restricting dealings with any particular land, lease or
charge.

A restriction may prohibit or restrict all dealings or only or the dealings that do not
comply with specified conditions.

Duration of a Restriction
A restriction may be expressed to endure:

 For a particular period;

 Until the occurrence of a particular event; or

 Until the making a further order.

The Registrar must give notice, in writing, of a restriction to the proprietor affected by
the restriction.

Removal of a Restriction
The Registrar may, at any time and on application by any person interested or at the
Registrar’s own motion, and after giving the parties affected by the restriction an
opportunity of being heard, order that the removal or variation of a restriction.

Upon the application of a proprietor affected by a restriction, and upon notice to the
Registrar, the court may order a restriction to be removed, varied, or other order as it
deems fit, and may make an order as to costs.

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