WEEK 4: CLASSIFICATION OF PROPERTY RIGHTS IN LAND AND THE

DOCTRINE OF PROPREITORSHIP IN LAND

4.1. Categories of Land Rights and Interests

4.1.1. Doctrine of Estates

➢ The term estate indicates an interest in land of some particular duration.

➢ The concept of estates, although related to tenure, can be distinguished

as follows:

• Estates relate to interests in land which are projected on the plane

of time and consequently are capable of being quantified in terms of
duration. (How long);

• Tenure on the other hand refers to a set of conditions upon which

an estate or interest in land may be held. In a sense, the doctrine of
tenure is preoccupied with the quantification of interest in land that
one may hold regardless of their nature. (How much/quantum)

➢ The idea that one does not own the land but rather has an interest in it is
what underlies the basis of landholding. This, in a nutshell, is what is
referred to as an estate.

➢ An estate is therefore an abstract entity which defines the rights that the
owner has in relation to the land.

➢ The doctrine of estates is a logical consequence of tenure.

➢ Under English law, all land belonged to the crown. Individual ownership
of land therefore devolved from crown land.

➢ The characterizing element of the estate is its temporal nature and

length of time. Individuals would acquire different interests of the crown
land depending on these two elements.

➢ The doctrine of estates could also be said to have emerged because certain
incidences of ownership can be divided between different people at
different times. It is the doctrine of estates that facilitates this process.

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➢ Under common law, it can be generally said that only 2 distinct legal rights
can exist at the concurrently in chattels; that is possession and ownership.
For instance, where A lends his car to B, ownership is still vested in A but
possession resides with B.

➢ A number of legal rights may however subsist concurrently with regard to

land. For instance, A may be entitled to the land for life, B may have a life
interests after A’s death while C can lay claim to the fee simple remainder.
At the same time, D may have a lease of 99 years over the land, E a
sublease of 21 years and a charge or mortgage may be taken out in favour
of F. G on the other hand, may have profits aprendre while H, I, and J may
claim easements indefinitely.

➢ Ownership is absolute, at least in relation to chattels. It is either owned

outrightly by 1 person or by several persons jointly or in common or not
owned at all.

➢ However, in theory, there is no absolute ownership of land. Land is held

in tenure and there is a presumption that it is held directly by the crown.

➢ It may be so held for various estates, i.e. for a greater or less period of time.
Under English law, estates were divided into 2 categories; freehold estates
and leasehold estates.

A. Freehold Estates

➢ Freehold Estate is one where the duration cannot be known with

certainty at the outset.

➢ The expression freehold derives from the feudal system where there were
free and unfree tenures. Today, English land is held by the crown on
freehold.

➢ At common law freehold estates were subdivided into freeholds of

inheritance and freeholds not of inheritance.

➢ Freeholds of inheritance were further categorized as fee simple estates

and fee tail estates.

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➢ Freeholds not of inheritance were further categorized as life estates and
estates pur autre vie.

➢ The principle distinction to note between the categories is that property

rights can be passed from one generation to another in freeholds of
inheritance.

➢ The same cannot be said for freeholds not of inheritance. Inheritance is

denoted by the reference to “fee” as in fee simple and fee tail.

➢ The words simple and tail distinguish the classes of heirs which could
inherit.

➢ A fee simple descended to the heirs (however remote) of the property

owners indefinitely. Fee tail could limit (curtail) further inheritance
beyond, say the eldest son, for example.

➢ To the contrary, a life estate was not a fee, therefore, it could not devolve
by way of inheritance and not perpetual in that sense. The tenancy of a
life estate extinguished at his death.

➢ However, in estates pur autre vie, the estate passed under special rules of
occupancy (more on this shortly).

a. Fee Simple Estates

➢ Traditionally, a fee simple estate lasted as long as the original tenant or

any of his heirs survived.

➢ A fee simple would terminate if the original tenant died without leaving
any descendants or collateral blood relations even if the before his death
the land had been conveyed to another tenant who was still alive.

➢ In Walsingham’s case (1573) 2 Plow. 547 the fee simple estate was
described as “a time in the land without end.” The fee simple estate is
practically indistinguishable from ownership of the land.

➢ In the event that there is no passing of such successive interest i.e. where
there is failure for whatever reason to pass to the designated person, it is

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 in the nature of such an estate to pass to the state through the operation
of the doctrine of “escheat”.

➢ The radical title is retained by the state and in event of failure property
passes back to the state.

➢ Fee simple may be absolute or modified. Modified fee simple estates can
be classified further into determinable fee simple and fee simple upon
condition.

b. Fee Tail Estates

➢ Fee tails were hard to come by. Traditionally, the fee tail estate was a grant
of land for the purpose of providing for the family or family branch of a
younger son who were not going to inherit family property.

➢ It was also a means of assisting a daughter who was not an heiress.

➢ Today, a fee tail may only be recognized as an equitable interest.

➢ Under this estate, the right to possess land could only be inherited by the
direct descendants of the couple.

➢ The estate was thus limited (curtailed) in time and ended where there were
no more heirs of the body.

➢ Unlike a fee simple, the fee tail estate was followed by a reversion or a
remainder.

➢ Upon failure of the donee’s lineal issues, the estate would still belong to
the original donor.

➢ It was contingent, therefore, to have a fee tail estate vested in a trustee in

the event that the donee’s lineage would end.

➢ This trustee would fill the residue of eternity which would be vacant if and
when the fee tail ended abruptly.

➢ Where no trustee is appointed, the estate would escheat to the state.

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➢ It should be noted that grant land under a fee tail estate could not be
alienated.

➢ Baker J. H in “An Introduction to English Legal History, 2 ndedn (London:

Butterworths, 1979) states that “[fee tail estates] were rigid, unalterable,
inalienable perpetuity: a juridical monster.”

c. Life Estate

➢ A life estate is where a person owns the rights over the land for the length
of his own lifetime.

➢ Upon the death of a life interest owner, the estate reverts to the superior
estate owner who is usually a leasehold owner or a fee simple owner.

➢ Today, a life estate, may only exist as an equitable interest.

➢ A life tenant has the right to immediate possession of the land. Where a
third party trespasses, the life tenant may bring an action against them.

➢ For all intents and purposes, the life tenant was the owner of the land for
the length of his life.

d. Estate Pur Autre Vie

➢ This was a type of life interest where ownership subsisted concurrently

with the life of another person other than the one whom the interest is
vested.

➢ For instance, if the property in question is vested in ‘A” for the life of ‘B’
what it means is that the Estate will last for as long as B lives and in the
event that B dies before A, the property re-vests on the person who made
the settlement or the settlor.

B. Leasehold Estates

➢ Land law in England only recognized freeholds as the only estates in law.

➢ The lease was viewed as an arrangement between the freeholder of land

and tenant for exclusive use of the land for a set number of years or less.

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➢ Leaseholds can be distinguished from freeholds by the certainty of
duration of the ownership rights conferred.

➢ These estates vary depending on duration or time for which they are
supposed to last so that we can speak of different categories of such
interests.

➢ Leasehold can be of a fixed term of a certain duration such as a lease of 99

years or a fixed term with a duration capable of being rendered certain such
as where a lease of land to A for year to year with no other provision as to
duration will continue indefinitely unless either of the parties takes some
steps to terminate it.

➢ More on leases shall be discussed later in the course.

C. Absolute Estate

➢ There is nothing such as an absolute estate at Common Law.

➢ However, in Kenya, the concept of an absolute estate emerged during the

colonial rule.

➢ In pre-colonial Kenya, land was held under a communal tenure. Land was
held jointly by a clan, tribe or family as opposed to individual tenure.

➢ The British introduced the concept of individual ownership.

➢ The individual tenure was however only meant to benefit the white settlers.

➢ Consequently, the natives were stripped of large tracts of land and forced
into a state of landlessness.

➢ After a period of oppression, the natives were agitated and raised their
grievances.

➢ In an attempt to solve the emerging native problems and avoid a possible

rebellion, the British came up with land reforms.

➢ One of the major pillars of reform was the consolidation of native land.

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➢ Because of displacement, African natives had subdivided their parcels of
land into small uneconomic units. The small units were economically
unsound.

➢ The Swynnerton Plan of 1954 advocated for reform of the land tenure
system within these areas and the most important recommendation was
that all property falling within the African areas be brought under a
registration regime.

➢ This was to be accomplished by consolidation of holdings where they were

so tiny and uneconomical to work and in many instances they would be
followed by adjudication of claims regarding those holdings or titles.

➢ The objective of consolidation was to bring about bigger or larger holdings

that would benefit from the economies of scale.

➢ Following adjudication the successful parties would be duly registered as

the sole proprietors of the title in question.

➢ Upon registration, the rights enjoyed by registered proprietor were rights

which were described in the nature of an absolute estate and not a free
hold.

➢ The principle of absolute ownership works in 2 ways; it stipulates what

interests an absolute proprietor gets and the rights which he takes subject
to:

➢ Section 24 (a) of the Land Registration Act states that registration of a

person as the proprietor of land vests in that person the absolute
ownership of that land together with all the rights and privileges belonging
or appurtenant thereto.

➢ Under Section 25, the rights of a proprietor whether acquired on first

registration or subsequently for valuable consideration or by an order of
the court cannot be defeated except as provided therein.

➢ An absolute title is however subject to:

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

ii. Such liabilities rights and interests that have affected the land and are
declared by Section 28 of the LRA not to require noting on the register
unless the contrary is noted in the register. These are called overriding
interests.

➢ Overriding interests are captured under section 28 to include:

• Trusts including customary trusts

• Rights of way, water, and profits subsisting at the time of registration
• Natural rights of light, air, water and support.
• Rights of compulsory acquisition, entry, resumption, search and user
conferred by any other written law.
• Leases/agreements for leases for a term not exceeding 2 years, periodic
tenancies, and indeterminate tenancies.
• Charges for unpaid rates and other facts which without reference to the
register under the Act
• Rights acquired or in the process of being acquired by virtue of any written
law relating to the limitation of action (adverse possession)
• Electric supply lines, telephone and telegraph lines or poles pipelines
aquaducts, canals, weirs, and dams constructed, erected/laid in
pursuance or by virtue of any power conferred by any written law
• Any other rights provided for under any written law.

➢ Section 26 (1) provides that the Certificate of Title issued by the registrar
upon registration shall be taken by all courts as prima facie evidence that
the person named as the proprietor is the absolute and indefeasible owner
subject to encumbrances, easements, restrictions, and conditions
endorsed/ contained in the certificate.

➢ Such a title may only be vitiated by fraud or misrepresentation and where

the title has been acquired illegally or un-procedural.

➢ There have been a lot of judicial decisions on the interpreting of the rights
of an absolute proprietor.

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➢ Obiero v. Opiyo [1972] E.A. 227 was decided under the Registered Lands
Act regime. In that case, the plaintiff had been registered as the absolute
proprietor of the title in question in 1968 and in the register no
encumbrances were noted. The defendants who were sons of the
defendant with the co-wives conceded that they had always been in
possession of the suit property and they based their ownership purely
under customary law. In a bid to bolster their case they argued that they
had always worked the land since time immemorial and argued that the
registration of the plaintiff, the first wife, in their view was obtained by way
of fraud to the extent that the plaintiff never revealed their interest during
the registration process. That sort of argument did not persuade the court
and the court in its findings held that even if the registration had been
procured fraudulently, the plaintiff’s title of first registration was
indefeasible and the plaintiff’s title was subject to no encumbrances as the
register reflected none and accordingly the title was free from all interests
and claims and finally the court found that the rights of occupation
inherent in the defendants which in any case arose under customary law
were not overriding interests within S. 30 of the RLA and the court further
held that such a right of occupation had been extinguished upon the first
registration with the plaintiff emerging as the absolute proprietor of the
suit property and in granting the plaintiff the relief sought i.e. damages for
trespass and a permanent injunction to restrain the defendants from
continued trespass. The Judge had this to say “rights arising under
customary law are not among the interests listed in S. 30 of the Act as
overriding interests. Had the legislature intended that the rights of a
registered proprietor were to be subject to the rights of any person under
customary law, nothing could have been easier than for it to say so.”

➢ In the case of Esiroyo v. Esiroyo & Another [1973] E.A. 388 the judge
relied on the judgment of Obiero case with the result that the registered
proprietor was allowed to evict his sons from land that was registered
under him as the absolute proprietor. This case arose after Esiroyo had a
bitter disagreement with his sons and threatened to disinherit them from
the land. The relevant customary law was Luhya customary law regarding
land tenure and there was evidence called to prove that under that system
of law that they were entitled to a share. The customary law did not carry
any favour and the court proceeded to allow the old Esiroyo to preclude
his sons from having their share of the family land although the sons had
proved entitlement to that law under the relevant customary law.

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 ➢ Look for post-2012 case law (if any)

D. Remainders and Reversionary Interests

➢ An estate may exist either in the form of possession in remainder or in

reversion.

➢ An estate in possession gives immediate right to possession and enjoyment

the land.

➢ Estates in remainder or reversion on the other hand are future interests.

Some other person is always entitled to possession.

➢ Remainders denote a future gift to a person not previously entitled to the

land.

➢ Reversion signifies the residue of an owner’s interest after he has granted

away some lesser estate in possession to some other person.

4.2. Interests in Rights Over Land

➢ Interests in land may be legal or equitable.

➢ Legal rights are created and are capable of being conveyed at law.

➢ Equitable rights are creatures of Equity.

➢ English Law recognized the following as legal rights:

a. Charges and Mortgages

b. Easements
c. Rights of entry
d. Rent charge (lease)

➢ All other interests were considered equitable under English law (equitable
interests will be discussed later in this lesson).

➢ In Kenya, legal charges are registered against the title in the register.
Equitable charges are construed by law but are still enforceable.

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➢ Rights in alieno solo enjoyed in the land of another person other than the
one entitled to enjoy such rights are called encumbrances (to discuss
shortly).

a. Charges and Mortgages

➢ Charges and mortgages are lending transactions designed to provide

security for money advanced by creditors.

➢ Section 2 of the Land Act defines a charge as an interest in land securing

the payment of money or money’s worth or the fulfilment of any condition
and includes a sub-charge and the instrument creating a charge.

➢ A mortgage was defined by Lindlay J in Samtley V Wilde as a disposition

of some interest in land or other property as a security for payment of a
debt or the discharge of some other obligation for which it is given.

➢ Under the ITPA (repealed), a mortgage is defined as the transfer of an

interest in specific immovable property for the purposes of securing the
payment of money advanced or to be advanced by way of loan, an existing
future debt, or the performance of an engagement which may give rise to
pecuniary liability.

➢ It is imperative to distinguish a mortgage from a charge. In the previous

land regime, mortgages were peculiar to land registered under the GLA
and LTA while a charge was peculiar to land registered under RLA and
RTA.

➢ A mortgage conveys an interest in specific movable property for the

purpose of securing payment of money advanced or to be advanced.

➢ The conveyance/assignment is conditional on the default by the borrower

in that event that the borrower defaults the mortgage interest in land
becomes absolute.

➢ A charge on the other hand only designates property as security for a

monetary facility. It does not transfer any interest in the property.

➢ S 80(1) LA provides that a charge to operate as security only and not as a

transfer of any interest or rights in land.

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 ➢ Charges and Mortgages shall be discussed in detail later in the course.

4.3. Other Rights in Alieno Solo and the Doctrine of Servitudes

➢ The questions of servitudes are closely related to encumbrances in the

sense that they are rights in alieno solo and effectively burdens upon land
belonging to another person.

➢ Alieno solo would be Latin for ‘in another’s soil/land.

➢ Various categories of servitudes that are enumerated as follows:

a. Cautions/caveats, Inhibitions, Prohibitions and Restrictions.

b. Easements;
c. Profits á prendre
d. Restrictive Covenants

➢ We shall discuss servitudes in a substantive topic later.

4.4. Leases and Tenancies

➢ Leases are said to be interests conferring a right to land itself as opposed

to interests conferring a right enforceable against the land of another
person.

➢ An owner of a property who does not wish to stay or occupy the land
himself may grant another person the right to occupy and use the property
for a certain period in return for an agreed sum of money.

➢ In Prudential Assurance Co. Ltd V London Residuary Body (1992)AC

286 a lease was defined as

“a contract for the exclusive possession and profit of land for some
determinate time”

➢ Section 2 of the Land Act defines a lease as follows;

“The grant, with or without consideration by the proprietor of land of the

right to exclusive possession of his or her land, and includes the right

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 so granted and the instrument granting it and also includes a sublease
but does not include an agreement to lease.”

➢ Under Section 2 of the Land Registration Act as lease is defined to mean;

i. A lease or sublease whether registered or unregistered land

ii. A short term lease or agreement to lease

➢ A grantor of a lease is known as the lessor while the grantee is known as

the lessee.

➢ The words ‘lease’ and ‘tenancy’ denote the grant and are sometimes used
interchangeably.

➢ However the word tenancy has come to be used in reference to short term
leases.

➢ Leases are regulated by Part VI of the Land Act. However, Section 55 allows
parties to enter into lease agreements outside the scope of Part VI.

➢ A lease should be distinguished from an assignment where say in a lease

only a term of 5 years is granted to the lessee and the lessor has a right of
reversion after the expiration of the term granted.

➢ On the other hand, an assignment conveys or assigns the entire leasehold

interest to the purchaser and the vendor has no right of reversion. The
vendor can only assign the unexpired residue of his term.

➢ More on Leases in a substantive topic later.

4.5. Categories of Land

➢ Article 61 of the Constitution of Kenya 2010 stipulates that all land in

Kenya belongs to the people of Kenya collectively as a nation, as
communities and as individuals.

➢ Land is categorized therein as public, community, or private land.

➢ Article 62 defines public land to include:

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 a. Un-alienated government land as defined by an Act of Parliament;

b. Land lawfully held, used or occupied by any State organ – However, this
does not include land that is occupied by the State organ as lessee
under a private lease;

c. Land transferred to the State by way of sale, reversion or surrender;

d. Land in respect of which no individual or community ownership can be

established by any legal process;

e. Land in respect of which no heir can be identified by any legal process;

f. All minerals and mineral oils as defined by law;

➢ Public land is administered by the National Land Commission established

by the NLC Act.

➢ It is vested with either the county government or national government in

trust for the general public.

➢ Article 64 of the Constitution defines private land to be:

a. Registered land held by any person under any freehold tenure;

b. Land held by any person under leasehold tenure; and

c. Any other land declared private land under an Act of Parliament.

➢ Private land therefore is land or property that is held by individuals in the

nature of freehold estate or a leasehold grant from the government.

➢ It is possible for groups of people to own private land.

➢ Private land is also capable of joint ownership and co-ownership as in joint

tenancies and tenancies in common respectively.

➢ Property in joint tenancies is indistinguishable i.e. where two people own

property under joint tenancy it is impossible to divide what shares in the
property each one has.

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 ➢ Such property will devolve by way of survivorship. (to be discussed later).

➢ Tenancies is common is a shared interest with clearly distinguishable

portions. Each tenant may alienate or dispose of their share without
affecting the co-owners tenancy.

➢ Article 63 defines community land to consist of:

a. Land lawfully registered in the name of group representatives under the

provisions of any law;

b. Land lawfully transferred to a specific community by any process of law;

c. Any other land declared to be community land by an Act of Parliament;

and

d. Land that is—

i. Lawfully held, managed or used by specific 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,

➢ Any unregistered community land is to be held in trust by county

governments on behalf of the communities for which it is held.

➢ The principal legislation regulating community land is the Community

Land Act No. of 2016

4.6. Doctrine of Proprietorship

Property Rights from a Civil Society

• According to Thomas Hobbes, property rights evolved with the concept of

a civil society.

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• Before the dawn of civilization, the preponderant condition 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.

• Every person had to assert a claim to property by might.

• Individuals were pitted against one another and in order to survive one
had to withstand these harsh conditions.

• 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: life was short, cruel and brutish.

• The fear of extinction pushed people to forego the exercise of their own
might in exchange of authority but instead each of them was guaranteed
some property rights that their property would not be taken away and that
they would enjoy the fruits of their labour.

• This gave way to the idea of a three way exchange of rights known as the
Social Contract

• Under the Social Contract,

1. Each individual was to renounce the use of individual might

2. The condition was that everyone did the same

3. The collective power of might would be ceded to exercise the same

to the better of all

• The Social Contract achieved peace to all men and guaranteed them a
number of benefits which were by far more attractive.

• The Social Contract is the basis of civil society and is predicated on the
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.

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Property and Ownership

• Corollary to the issue of rights is the concept of property and ownership.

• A right relates to particular things i.e. property which is 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.

• It inheres in a specific person who is entitled to claim such a right.

• The existence of a right presupposes that there exists other person[s] on

whom the right imposes relative duty or obligation.

• There must also 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.

• Ownership, on the other hand, 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.

• Many definitions have been ascribed to property at the beginning of this

course. In this context however, it will suffice to say that property is the
thing capable of being owned and as such demands assertion of rights over
it.

• Together, the concept of property and ownership may bring about a

plethora of rights to the owner.

• At the centre of it is possession. 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 a complex of
exclusionary rights which can be exercised against the entire world.

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Incidents and Characteristics of Ownership

• The primary characteristic of ownership is possession.

• An owner has the right to possess the object or thing owned.

• The fact that he may have 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 that fact he still remains the owner of
such an object or thing with an immediate right to possession.

• The owner of an object or thing will still retain a reversionary interest even
where he has lent out /leased/loaned the subject of ownership.

• This right to possession is jealously protected by the law and any party
deprived of their rights to possession may pursue legal action in a claim
for damages, specific performance, or for an injunction.

• Another characteristic of ownership is the right to exclusive

enjoyment or use of the property owned.

• In exercise of such right, the owner is free to determine or decide how the
object or thing will be used and by whom.

• He has rights to consume alienate dispose the thing/object as he pleases

freely without any impediments. This, however, is predicated on the
premise that the enjoyment will be within the confinements of the law.

• Correspondingly, other people are under a duty not to use or interfere with
the rights conferred on the owner.

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

legitimately exercising such powers on the grounds that the owner has no
good title to the object/thing. This is exemplified in the Latin maxim nemo
dat quod non habet.

• Ownership rights are peculiar to the owner alone. As such ownership may
be said to be rights in rem (against the entire world).

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 • However, as it will be seen below, there are some instances of concurrent
ownership.

• It is also a characteristic of ownership that it is indeterminate in

duration as against non-owners vis-à-vis that of an owner.

• Ownership is residual- The rights attendant to ownership are capable of

being granted further to third parties without necessarily derogating the
owner’s right, e.g. where a lease has been granted to a tenant, the landlord
will maintain a residual interest in the land usually termed as a reversion.

• Ownership rights are inexhaustible. The owner may grant any interest in
their property without losing his right of ownership.

So what then is proprietorship?

• The term proprietorship is synonymous to ownership. It connotes a

relationship between the owner (proprietor) and the thing or object that is
owned (property). As such all characteristics listed above will apply as well
for proprietorship.

• It is a general characteristic of ownership that such rights are peculiar to

only the owner.

• However, some exceptions exist in the form of concurrent proprietorship;

a) Joint Tenancies
b) Tenancies in Common
c) Leases and Licenses; and
d) Sectional Properties and subleases

• Other exceptions include eminent domain (discussed earlier) and adverse

possession (to be discussed shortly).

- Leases and licences will be discussed in detail later on in the course.

Co-ownership (Joint Tenancies and Tenancies in Common)

• Under the doctrine of co-ownership, there are joint tenancies and

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 tenancies in common.

• The LRA calls it co-tenancies-see part IX

• Joint tenancies:

- means co-owners together own the whole estate.

- Separately, they own nothing.

- There are in unity of interest, unity of possession, unity of title and unity
of time.

- On death, the surviving co-owner (joint tenant) continues owning the land.

- The deceased does not die owning a distinct and separate interest in the
co-owned property.

- This is known as the doctrine of survivorship (jus accresendi).

- Under this doctrine, in the event of death of all co-owners, inheritance will
go to the heirs of the heirs of the co-owner, who died last/survived the
older one.

- In the event of uncertainty of died last, it shall be deemed that the younger
one died last.

- See part IX of the LRA.

• Tenancies in common:

- Each co-owner has a separate identifiable share of the property.

- They do not own the whole together.
- There is no unity of interest, but there is unity of possession.
- But it is not yet a share which that has been realized or divided, that is to
say, they own undivided shares.
- Survivorship does not apply. On death, the deceased co-owners share can
be inherited.

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- See part IX of the LRA.

Consecutive Ownership and the Problem of Perpetuities

• (study for discussion in the next class)

Sectional Properties and Subleases

• Kenya’s urban areas are increasingly overwhelmed by large numbers of

rural urban immigrants.

• The need for urban housing has led to lots of investments by private
developers the motivation being the quick and huge profits that accrue
from these particular investments.

• The Sectional Properties Act 1987 (now 2020) was essentially enacted to
facilitate the sale and purchase of flats and apartments by way of sectional
titles.

• Key characteristic of the Act include separate ownership of flats and

apartments, co- ownership of common property by all flat/ apartment
owners.

• Different persons can own different units or flats in the same high-rise
building.

• This is done by the registration of sectional plans in respect of the units.

The Sectional plan is the architectural drawing outlining the units and the
proportional common area to which each unit related to.

• Only properties registered under the Registered Land Act (repealed) may
have been subject to registration as Sectional Titles. Where property was
been registered under a different regime, it must have first been converted
to RLA (repealed).

• Subleases are similar to sectional properties but they were/are used

properties not governed by Sectional Properties Act, including GLA and
RTA (both repealed), and properties under RLA (repealed) that had not
been converted to SPA.

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• Mother title, leases/subleases (eg flats, apartments, even bungalows,
maisonattes etc) sharing the same mother title, management company,
reversionary interest/transfer of land for freehold.

• The LRA S 54 (3) recognises registration of interest in land under the SPA.

• LRA S 54(5)-registrar shall register long term leases and issue certificates
of lease over apartments, flats, maisonettes, townhouses or offices as long
they are properly geo-referenced and approved by the body charged with
survey.

• Have a look at Sectional Properties Act 2020.

• More on sectional properties and sublease will be discussed in Property

Law 2.

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