INTERESTS IN LAND

CONT
Elements of Land Law
Lecture 6
Elizabeth Mulwa
PROFITS A PENDERE
 A profit is an interest in land and passes as any other interest in land. It can
be defined as the right to another’s land and take out something from
the land that is capable of ownership.
 If the substance taken cannot be owned, then a profit will not arise. The
substance of profit can either be enjoyed alone or can be enjoyed by a
person in common with others including the person in or upon whose land
the substance of profit is situate.
 Profits include the right to go to another’s land and cut trees say for wood,
fetch firewood, and fetch clay or shale.
 Profit may be created by an instrument. The instrument must clearly state
the nature of the instrument, the period for which it is to be enjoyed
and whether it is to be enjoyed in gross or as a pertinent to other land,
or a lease and whether it is to be enjoyed by guarantee exclusively or in
common with the guarantors. The grant in a profit shall be completed by its
registration as an encumbrance in the register of land or lease which it
affects and where it is a pertinent to other land or a lease by its
registration in the property section or land or lease to which it is a
pertinent.
 A profit granted by proprietor of a lease shall be capable of subsisting only
during subsistence of a lease.
LICENCES
 A license is a relationship whereby the licensee is granted a
right to enter into or use the premises without becoming
entitled to exclusive possession. A licensee has no interest in
the premises but he can exclude the whole world from the
premises except the licensor.
 S2 LA defines a license as permission given by the
commission(for public land) and proprietor(for private land)
allowing the licensee to do some act in relation to the land
which would otherwise be a trespass but does not include an
easement or profit.
 The characteristics of licenses are as follows:
 1. Permission to use premises
 2. Cannot assign/transfer
 3. Rights limited
 4. Can be revoked upon reasonable notice
 5. No protection by statute
RESTRICTIVE COVENANTS
 A restrictive covenant is a private agreement between land owners
where one party will restrict the use of its land in some way for the
benefit of another's land. Restrictive covenants, once agreed between
the parties, are placed in the title deeds to the property. They bind
the land and not the parties personally.
 When a party enters into a restrictive covenant, he/she agrees to refrain
from doing something or from using a property in a certain way that is
restricted by the contract. These are often referred to as negative
easements to the extent that they restrain the activities of the registered
proprietor as to what he can possibly do within his land.
 Restrictive covenants prohibit the burdened property owner from doing
something, rather than granting the benefiting party to a right of use.
Just as your neighbor could have an easement for access to their
property across your own, both of you may have agreed to a restrictive
covenant that limits your ability to, for example, build any structure over
10 feet in height. Or, maybe there is a covenant recorded against your
property prohibiting you from constructing a pool, or maybe even
conducting any commercial uses on your property. The scope and extent
of possible restrictive covenants is vast and variable.
RESTRICTIVE COVENANTS
 It is possible to stipulate covenants and conditions in
a lease, an instrument may contain an agreement by
one proprietor of a building on the user or
enjoyment on his land for the benefit of the
proprietor of another land. Such instrument maybe
registered as an encumbrance to the title.
 Unless it is noted in the register, a restrictive
agreement or covenant is not binding on the
proprietor of land or lease burdened by it or
anybody acquiring the land or lease. It is not only
the proprietor themselves but also their respective
successors in title who shall be entitled to the
benefit and subject to the burden of it respectively
unless the instruments otherwise provides.
ADVERSE POSSESION
 Adverse possession is a legal principle under which a person who
does not have legal title/ registered title to a piece of property —
usually land— acquires legal ownership based on continuous
possession or occupation of the property without the permission of
its legal owner.
 The doctrine of adverse possession is closely related to the
limitation of actions and restriction in relation to land. The basis of
limitation is to shut out the assertion of a right beyond a certain
prescribed period of time. Rights must be asserted within time
failure to do so results into their extinction.
 There are different limitation period for different rights.
 Tort-3yrs
 Contract - 6yrs
 For land, the general limitation period is 12 years. The limitations of
actions act at section 7 provides that an act may not be brought by
any person to recover land after the end of 12 years from the date
of which the right of action accrued to him or if it first accrued to
some person through whom he claims to that person.
ADVERSE CONT
 s. 17 of the limitation of actions act provides that subject
to s.18 at the expiration of period provided by this act for a
person to bring an action to recover land including a
redemption action, the title of that person to the land is
extinguished.
 s. 37 of the act provides that the act applies to land
registered under the GLA,RTA,LTA or RLA in the same
manner and to the same extent as it applies to land not so
registered.
 Under s. 38 of the act where a person claims to have been
entitled to adverse possession to land registered under any
of the acts, sighted in s.37 or land comprised in a lease
registered under any of those acts, he may apply in the
high court for an order that he be registered as the
proprietor of the land or lease in place of the person
registered as proprietor of the land.
ADVERSE CONT
 RUNNING OF TIME
 Time begins to run when the owner of the land has been dispossessed
(driven out of possession) or has discontinued his possession (abandoned
the premises) and the person claiming adverse possession has now
assumed possession in place of the original owner.
 The possession must be adverse i.e. inconsistent with the title of the true
owner. And will therefore not cover possession by way of a license or
possession with the permission of the owner. There must not only be mere
possession but also possession with intention to possess the land to the
exclusion of all others. (Animus Possidendi). Fencing of land is strong
evidence of adverse possession
 It is not a must for the adverse possessor himself to be in occupation, it is
enough if he has granted tenancy or possession; exclusive control of
possession is necessary.
 Possession must consist of the following:
 i. Be factual; actual factual possession
 ii. Be accompanied by animus Possidendi
 iii. Any form of acknowledgement to the owner will negate any intention to
posses
ADVERSE CONT
 If a squatter sells the land, he can give the purchaser a right to
the land which is as good as his own; the same applies to gifts
and other dispositions in land and to devolution on his intestacy.
 The person taking over the squatter’s interest can add the

squatter’s period of possession to his own period. This could

also happen if a second squatter dispossesses a first squatter,
this is so because time begins to run against the owner from the
time adverse possession begun. For as long as possession
continues uninterrupted, it does not matter who continues with
it.
POSSESION ABANDONMENT
 If a squatter abandons possession before expiring of a period of

12years and some time passes before someone else takes

possession, the land during duration under which there is no
possession ceases to be in adverse possession. If a second
squatter takes over time starts to run afresh.
PRESCRIPTION
 Prescription is the method by which the law gives legal recognition
to the existence of an easement which has been enjoyed over a long
period as if it had been created initially by a formal grant.
 Acquiring an easement by prescription however, is not directed
towards the goal of acquiring title to property. Rather, it is directed
towards acquiring an easement. So, if one uses, rather than
possesses, the land of another, and the use is open and notorious,
adverse, continuous and uninterrupted, for the statutory period,
then one acquires an easement and can continue to use that land.
 Unlike adverse possession, prescription is a non possessory interest
in land through the long, continuous use of the land. The law now
provides that one can acquire title to land even when he has not
been in possession of such land if he can show that he has used the
land for a long period of time. The statutory period for one to
acquire land by prescription, which is an easement, is twenty years.
COMPULSORY AQUISITION
 Compulsory acquisition also domain is the power of
the state or its asides to acquire private property
for public purposes subject to the payment of
compensation. Whenever the government exercises
its power, it forces involuntary transfer of property
from private owners to itself or asides.
 The power of eminent domain is derived from the
feudal notion that as a sovereign, the state holds
the radical title to all land within its territory.
 In Kenya, the power is embodied in the
Constitution which requires the private property
can only be acquired compulsorily for public use.
CA CONT
 The COK further requires that such public use must be weighed against the
hardships that may be caused to the owner. The constitution further
requires that the acquisition must be accompanied with payment of
adequate compensation.
 The rules governing acquisition of trust land and compensation were
contained in the trust land act whereas other cases of compulsory
acquisition were remunerated by land acquisition act which has been
repealed by land act, 2012.
 Under sec 107 of the Act, whenever the national or county government is
satisfied that it may be necessary to acquire some particular land under sec
110 then the respective cabinet secretary or county executive committee
member shall submit a request for acquisition of public land to the
commission to acquire the land on its behalf. The commission is required to
come up with a criteria and guidelines to be followed by the acquiring
authorities.
 The commission may reject a request from an acquiring authority if it does
not meet the requirements of subsection 2 and Art 40(3) of the COK.
Provision may be made for compensation to be paid to occupants in good
faith of land acquired under clause 3 who may not hold title to the land by
the acquiring authorities.
CA CONT
 The commission may reject a request from an acquiring authority if it does not meet the requirements of
subsection 2 and Art 40(3) of the COK. Provision may be made for compensation to be paid to occupants
in good faith of land acquired under clause 3 who may not hold title to the land. Upon approval of a
request under subsection 1, the commission shall publish a notice to that effect in the gazette and the
county gazette and shall deliver a copy of the notice to the registrar and to every person who appears to
the commission to be interested in the land.
 Interested persons include any person whose interest appears in the registry, spouse or spouses of any
such person as well as any person occupying the land and the spouse or spouses of such persons. Upon
service of the notice, the registrar shall then give a notice to the register of all the land to be
compulsorily acquired shall be geo-referenced and authenticated by the office or authority responsible
for survey at both national and county governments.
 Once an entry has been made under sec 108, the commission shall then promptly pay in full just
compensation for any damage resulting from the entry.
 Under sec(1)(f)(2) if a land has been acquired for public purpose or interest and the compulsory
acquisition fails or seizes, the commission may offer the original owners or their successors in title
preemptive rights to re-acquire the land but upon restitution to the acquiring authority, the full amount
paid as compensation. The commission has powers to make rules to regulate the assessment of just
compensation.
 Under sec 112(1), at least 30 days after the publication of the notice of intention to acquire land, the
commission is required to set a date for an inquiry to hear issues of propriety and claims for
compensation by persons interested in the land. The notice shall be published in the gazette or county
gazette at least 15 days before the inquiry.
LEASES, CHARGES, MORTGAGES
 LEASES-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) AC286 it was defined as “a contract for the exclusive
possession and profit of land for some determinate time”
 CHARGE- S2 LA, S 3 RLA- 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. Simply
put- security for loan with an undertaking for repayment. It confers
certain rights to the Chargee from the Chargor
 MORTGAGE- ITPA defines a mortgage as “The transfer of an
interest in specific immovable property for the purpose of securing
the payment of money advanced or to be advanced by way of loan,
an existing or future debt or the performance of an engagement
which may give rise to a pecuniary liability”
 These interests will be covered in depth in subsequent lectures.
OVERRIDING INTERESTS

 The general rule in real property law is that all

interests and rights over land must be noted on
the register. (S.24 of the Land Registration Act)
 •Overriding interests are interests to which a
registered title is subject, even though they do
not appear on the register.
 •They are unregistered interests that override
first registration.
 •They are binding on the registered proprietor
and on the person, who acquires an interest in
property.
OVERRIDING INTERESTS
 Sec 28 of the LRA provides for what constitutes the
overriding interest. Under the same section, unless
the contrary is expressed in the register, all registered
land shall be subject to the following overriding
interest as may from time to time subsist and affect
the same without there being noted on the register.
 The following are the overriding interests:

a. Spousal rights over matrimonial property.

b. Trusts including customary rights
c. Rights of way, rights of water and profits
subsisting at the time of registration under
the act.
d. Natural rights of lights, air, water and support.
OR CONT
 e. Rights of compulsory acquisition, resumption, entry, such
a user conferred by other written law.
 f. Leases or agreement for leases for a term not exceeding
two years. Periodic tenancies and indeterminate tenancies
 g. Charges of unpaid debts and other funds which without
reference and registration under the act are expressly
declared by any written law to be a charge upon the land.
 h. Rights acquired or in the process of being acquired by
virtue of any written law relating to the limitation of action
or prescriptions.
 i. Electric supply lights, telephone and telegraph lines and
poles, pipelines, aqueducts, canals, weirs, dams erected
constructed or lay in pursuance or by virtue of any power
conferred by any written law.
 j. Any other rights provided under any written law.
PURPOSE OF OVERIDING
INTERESTS
1. To correct an injustice where direct legislation was not
possible e.g. give effect to African customary law and
practice or to give rights over the land to the person in
possession or actual occupation
2. To enforce public policy in areas of natural rights of
way, light and water, electric supply lines, canals,
pipelines, weirs and dams.
3. To fortify the doctrine of eminent domain by
entrenching compulsory acquisition
4. To enforce recovery of taxes e.g. rates by county
governments
5. To recognize land acquisition through prescription
6. To give effect to the doctrines of equity to soften the
hardness of common law
 THE END
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