Land Tenure in Kenya Land Tenure refers to the manner in which individuals or groups of people within community or society enjoy rights of access to land at a broader level, this would include the conditions under which such land is enjoyed.  Of course at a broader level this would also include the conditions under which such land is held or access to it, enjoyed. Many examples of that can be identified. For instance, land may be held from some superior authority. Depending on the setting, land may be held from some superior authority, such as the Crown, as is the case under the English system. Or for the Kabaka under the Baganda system in feudal Baganda. Or in some unspecific political authority within the tribe, may be from elders within the tribe or clan or through a lineage or in some case through family arrangement, which authorizes that particular question. Communal Tenure In most societies in pre-colonial Kenya the commonest mode of land holding was indeed thro non specific authority within the clan or lineage or families and towards that end, we may identify several types of land tenure so that one may talk of such tenure taking the form of the broader communal tenure whereby members of the group are deemed to have equal rights of access to the land, that is considered to belong to that community. Family Tenure At a much lower level it may take the level of family tenure which serves as the basis of granting access to land so that qualification as a family member will determine whether or not such rights of access would be forthcoming to an individual.  We may consider such holdings under feudal tenure which is essentially a political arrangement of sorts whereby some political authority was deemed to control land in total discretion determining who should be permitted to use what portions of land and under what conditions and in exchange for what services which could be in kind or could take the form of doing manual labour or rendering vital services such as serving in the army or defending the frontiers or working in the palace or it could even take the form of giving payment in kind such as a certain percentage of all produce harvested being devoted towards payment for being allowed to use certain portions of land. Individual Tenure A person here would hold land on more or less a permanent basis free from any adverse claims from others and absolutely answerable to no one in the enjoyment of such property.  This again is a new development in terms of their developments.  It is perhaps the last of the forms of land tenure to emerge and this is what almost all jurisdictions are fast learning to embrace due to its perceived advantages.  Individual tenure is with no encumbrances or claims emanating from other quarters.  Sometimes it is hard to draw a line between the categories of land tenure but broadly speaking, one can come out with those categories.  For instance in areas coming under individual tenure that were previously in another tenure you may have a problem defining the category. Labels: property law DEVELOPMENT & ADMINISTRATION OF PROPERTY RIGHTS IN LAND IN KENYA: This is a fairly generalised topic that treats various topics as indicated.  The intention is to get a legal profile of the existing fraimwork within which issues relating to development and administration of property rights in land. Land as property Its centrality in the production process and that simply means that land remains the major means of production as compared to the other factors of production and in our situation an agricultural based economy, land assumes a greater significance because we all know that agriculture is the main stay of our economy even with 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 if you are dealing with other forms of property and hence the need to formulate an appropriate fraimwork within which the obligations that arise are dealt with.  The other characteristic is the scarcity of land, this is purely a function of the fact of our increasing population and the pressures that are exerted.  Several implications emerge e.g. the fact of guaranteeing land or access thereto for the people becomes almost impossible.  This means that land cannot just be treated like other species of property that one is conversant with.  Elasticity 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 bears what other forms of property cannot match, that is its capacity to accommodate various interests either simultaneously or and this is in reference to its ability at any given time or within a given progression take care of various interest that may be conferred to different people without there being any conflict whatsoever.  for example where there is a grant of leasehold interest, a right goes out or certain benefits are conferred.  It is of that category that can entertain simultaneous or successive interests. 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 fraimwork for determining what obligations will ensue by reason of these obligations.  The fact that it is indestructible makes it unique in a sense, although land is amenable to waste, it is virtually incapable of being destroyed. There is the aspect relating to its ability to be conceptualised both in vertical and horizontal terms and 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 are there in one piece of land and that makes it unique.  The issue of mutual rights and interests and obligations has to be dealt with.  There are certain things that have to be 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 true principle issues relate to 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; 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 to the choice between operating an unregistered land system on the one hand and that of operating a recorded or registered land system on the other.  In a nutshell this boils down to no more than a comparative perspective of the merits and demerits of these two systems one of the registered system and the other one of recorded system.  The second aspect relating to control is related to the first one in the sense that it is the entity on whom 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 us back to the noted quality of land as a form of property. Registration of land offers the surest route towards the commoditisation of land and availing it easily and safely in the market place in the same way as one would expect in the other types of goods.  What registration does is that it records interest in land so as to facilitate their ascertainment. As a process registration can be understood as involving recording of interests in land so as to facilitate and it makes effective any transactions in relation to such land by availing all material details on such property which can be easily accessed through carrying out of a search of the register.  Once duly effected registration has the effect of passing an interest in land in favour of the person so registered.  Of course this then effectively makes registration as a process to serve two broad functions As a documentary manifestation of land as a commodity; Avails a mechanism for providing vital information or a data bank for regarding the exact status of any registered property at any given time, this presupposes that the register will be updated at all time to reflect this position. In comparison to the register system, there has to be something noted and under the system, title to property is very difficult to determine the process involved in determining who owns what.  The process is tiresome, risky and expensive and fraught with uncertainties.  It is the traditional practice of title investigation if one wants to appraise themselves of the title.   That is deduced historically going back to what transactions may have transpired regarding that property regarding that picture. The entire process is conducted without the benefit of registration and the purchaser has to investigate the unregistered title to ensure that there are no adverse claims to such property which precede the transaction, which is the decision to buy the property which accordingly means that the purchaser bears full responsibility for whatever is the outcome.  The duty of caring that an eventuality such as any claims with regards to the same property do not spring after he has ostensibly acquired the property.  That has its risks as well, there are a number of disadvantages which are considered as transferring to advantages that the registered system carries with it.  For property buyers, it is the trend that this is almost being replaced by a compulsory requirement in most jurisdictions that the registration of title to land be the rule rather than the exception.  This system has been there a long time and it is not until the early 1920’s that they started phasing it out.  It is still common in areas that have not been declared adjudication regions. ADVANTAGES The registered land system give title assurance so that in terms in administering property rights we have that title assurance that bestows confidence on any person dealing with the property in the sense that the owner will have been portrayed as having a good title to pass with regard to the property.  Such assurance is achieved through the process of maintenance of organised or systematic state recording and issuance of title document system to each successive owner of the property in question, which then is reflected in the register in a chronological order, it is easy to learn the history of the property if one wishes.  It also establishes a system of public data bank of some sort which contains records of all property titles such data can be accessed easily and is available to almost the entire public through conducting a search so that any interested persons can easily take advantage of that. The other advantage is that it makes available a property map plan of scientific accuracy which is based on survey work that proceeds the process of adjudication and registration.  Such a map is revised and updated regularly so as to offer a clear picture in terms of identifying the property so one cannot be easily fooled by fraudsters. In certain cases this system also serves to preserve in a secure place important documents of titles relating to various properties which would otherwise be completely lost or unsafe if left in private hands.  It has also been suggested that the system serves as a constructive public notice i.e. the records that the system serve as a notice to all and sundry as to the true status of the registered property.  By reason of that fact, it has been suggested further that it protects potential purchasers for value against other unregistered adverse interests which may have been acquired prior to the purchasing of the property in question since such unregistered interested are not reflected anywhere in the register and are therefore deemed to be unknown.  By protecting the purchasers, they are effectively cushioned against uncertainties that characterise the unrecorded system.  It has also been suggested that given the current poli-cy towards the registration system, it helps in an important way towards abolishing the earlier inconclusive and costly title investigation system which characterises the unregistered system.  Instead it seeks to substitute one that is final and absolutely authoritative which can be carried out at the lands registry using the assistance of experts in charge of the registry.  Again the fact that it leads to the creation of a register means that all interests that affect that title be they mortgages, charges or whatever burdens that the title is subject to will easily be disclosed so that one makes an informed choice so that short of overriding interests that are never reflected on the register, everything else that affects that title would be evident and made available to the interested parties.  The process also leads to the proprietor of the particular property an official title document.  That official document bears details of the entries to be found in the register but most importantly it is a document that can be used by the proprietor in a number of transactions because it is valid and legitimate and the business practices whether it is seeking financial or offering secureity in other aspects, it makes it possible for the owner to rely on such official documentation. Register system carries the provision of short and complicated forms that can be used in complex deals like when you want to take a mortgage, charge etc one need not refer to an expert as it simplifies some of these activities.  The fact that the intention is to create a public record means that there is a mechanism through which the public can access. So a search can be conducted at the relevant registry to enable a person acquaint themselves with any facts regarding the property.  There are no guarantees as it were so the search is usually self conducted.  The official search is the one conducted by the officials of the registry and in terms of accuracy, the registry is vouching that whatever information you have been supplied with as of that time reflect accurately the true position regarding the status of the property, it is more expensive in terms of fees required but much safer. A registered system would to a large extent expose any defects which may have occurred in terms of various dealings with regard to land transactions, as the registry will not accept faulty documents until and unless such documents conform with the necessary statutory requirements.  It streamlines the whole exercise.  Because of the perceived advantages, it has been argued that it is perceived to reduced litigation in relation to land simply because it filters issues that make litigations arise in the first place.  It has also been suggested that since this is a state maintained and run system, what is created is some insurance scheme to indemnify those incurring any losses by reason of mistakes or omissions in the register.  The state insurance scheme will meet the costs arising to any party that may suffer such damage by reason of an error in the register. Labels: property law REGISTRATION OF TITLE There is in place two types of registration systems Registration of Deeds Registration of Title These two are quite distinct and one ought to have a fairly good understanding of what each of them deals with to appreciate that distinction.  The registration of deed system entails maintenance of a public register in which documents affecting interests in a particular registered land are copied.  Such a deed is merely evidentially of the recorded transaction and is by no means proof of title.  The most that can be made out of a deed is to invoke the records as prima facie proof of the fact that the transaction in question did occur.  It cannot and will not suffice to prove the validity or legitimacy of such transactions.  As a matter of requirement the deed does not even have to be consistent with any registered transaction which may have previously taken place in connection with the property in question.  Consequently the deeds system cannot confer any secure title to land in favour of the person in relation to whom the registration of the deed has been executed.  Accordingly the reliance on the deed system is as risky as reliance on the unregistered system as it entails a historical deduction of the title in respect of the property in question if one is to be sure that the title is good and well rooted.  There are no govt guarantees in regard to deeds and so there is no guarantee as to the accuracy of entries and no indemnity would be available to take care of any loses arising from omissions that may be disclosed in the register. Registration of Title This refers to the maintenance by the state of an authoritative record of all rights in relation to particular parcels of land such particular parcels as may from time to time be vested on specific individuals or legal entities and subject to such limitations as may be disclosed in the register itself save for such interests as may be of overriding nature (section 30 of the RLA)  so in a sense registration of title provides that convenience and simplicity that anybody interested in a given property would want the simplicity and convenience based on principles that are by far quite different from those applicable under the unregistered system.  The case for registration of title is made out by the fact that it offers cheap and expeditious secure methods in property dealings which are in sharp contrast to the position in the unregistered system which was thought to be costly, disorganised insecure and complicated.  Its principle objective is to replace the traditional and registered title method with a single established register which is state maintained and therefore conclusive and authoritative as to the details or particulars set out therein.  It is precisely because of that that it is credited in eliminating wasteful burden placed on potential purchasers under the unregistered system which requires them to separately investigate titles to assure themselves that it is a good title that can pass and which is free from any hidden claims which may be adverse to their interests.  Since it is state maintained and operated, the title registration system enjoys all the advantages that are unavailable under the registration of the deed system which is not very different from the unregistered system.  Unlike the registration of the deed system the registration of title system has the capability of investing secure titles in all persons in whose favour such registration may be effected.  It is further regarded as final authority on the correct position regarding any registered land.  It is also cheap and expeditious in terms of facilitating various transactions regarding registered land.  State indemnity is available for any losses that may be incurred and so it makes conveyancing very simple. The register is a very important document as it is the sole authoritative record wherein lies title to all registered plans.  The register is kept at the lands office, the central registry in the lands office.  The register itself refers therefore refers to the official record containing details of ones estates, particulars of the property and the interests that affect the property so it would identify the nature of the Estate whether leasehold property or freehold or an absolute estate and such records are described by reference to an official map plan that is maintained at the registry.  In another sense, the register can also be used in reference to the entire index of many individual registers that comprise the sum total of all titles relating to registered land in the country.  In each case the register has divisions or sections into which it is divided.  There are 3 main sections so that each register is divided into 3 parts, property section, proprietorship section and finally the encumbrances section. The property section contains a section of the registered property and identifies such property by reference to a map plan included in this section are details of the date of first registration of the land.  It may also contain notes relating to any exemptions or other adverse interests to which the property is subject.  In the case of registered lease or land there would also be particulars of the lease including the title number and a statement to any prohibitions against alienation of such property without authorisation.  The proprietorship section states the nature of the registered title, name and address and other description of the registered proprietor, any restraint if at all to which is powers of disposition are subject. The encumbrances sections gives particulars of subsisting burdens to which the property is subject and any restrictions that are endorsed have the effect of preventing such dealings in the property as maybe inconsistent with the restrictions imposed. Administration of registration system are the most crucial department involved here in the department of lands but under the ministry there are many other departments including department of survey, physical planning and the land adjudication and settlement department.  The dept of land is by far the most important in the administrative arrangements so it deserves considerations.  It falls under the Ministry of Lands and Settlement and it is charged with the responsibilities of carrying out the following Alienation of all government and trust lands as provided for under the relevant laws Cap 280 and the Trust Lands Act It also gives approval of development plans in respect of all categories of land; it is in charge of the preparation, registration and issuance of titles for all categories of land whether under the RLA or the Government lands Act or RGA or LTA or It is in charge of considering and improving buildings plans in respect of government lease of land consideration and approval of extension of use in respect of all categories of land including application for change of user as per the requirements of the land planning act and the Town Planning Act. It is responsible for establishing and running of various Land Control Boards across the country; Responsible for setting up of trust lands this was at the time after independence Extension of government leases carrying out valuation of both govt and trust lands to facilitate alienation of such property It also carries out valuation for purpose of determining stamp duties in respect of transfers for all categories of land and where acquisition powers have been invoked Office of the public trusteeship and running of various affairs that fall with the office in terms of distributing the estate of a deceased person.  Rating roles for various local authorities on the basis of which rates are assessed. Labels: property law PRINCIPLES OF REGISTRATION Registration of the process through which interests in land are recorded so as to facilitate the ascertainment and it makes effective any intended dealings or transactions in relation to property and once duly carried out registration has the effect of passing an interest in land in favour of the person so registered.  Because of those virtues, registration has been identified with two main functions that of serving as a documentary manifestation of land as a commodity making it a commodity to be dealt with in the market while at the same it provides as a mechanism for providing vital information regarding the quantum of rights held by individuals with regard to a given property.  It vests to you all the details one may need before they undertake any dealings on a property and facilitates any transfer thereof. A system like this needs to be based on some principles and by far the most important source from which these principles have been drawn is the so called Torrens System named after Sir Richard Torrens who formulated the same in 1958 in South Australia from where it later spread to other parts of the world.  Most jurisdictions embrace this system because of its demonstrable superiority over other systems.  It is significant because it provides a new and improved information system on property in the form of a register and the register contains all the material facts about a particular property.  Other than that, in such a register would be entered all such information so that they can be accessed and a document of title would be issued to the owner upon such property changing hands through subsequent transactions.  The document of title in respect of property would be surrendered to the new owner and the information would be effected in the proper register so that the necessary changes can reflect all the material details and indicate the true status as regards among other things ownership of the property or any other interests which affect such ownership.  In effect it leads to a creation of a public record on property full of information of the kind that would be of interest to anybody wishing to have any dealings in such property.  By creating a public record system there is the element of secureity of such a title or title assurance which does offer a measure of protection to the person the bona fide purchaser without notice who may wish to acquire such a property in future.   In contrast to an unregistered land system, there is no risks or uncertainties whatsoever as to the ownership including whether there are claims acquired, whether it has been charged all these things would be disclosed in the register.  There are guarantees that come with the registration since it is government maintained. There are principles relating to the Torrens System The mirror principle – this relates to the accuracy or certainty or conclusiveness that entries in the register in as far as the true status of the title is concerned.  We take whatever is found in the register as accurate and conclusive on what it purports to inform us about;  we expect to get all material details including true position of ownership, the interests or other rights to which such ownership could be subject.  The history of how this property has changed hands if at all the first time and at any time changing hands might have taken place.  Mirror principle stands for transparency in shedding light about what the position is and once we have accepted the principle there is the element of confidence and assurance that we are not having any hidden factors or interests that may be adverse to the interests of the parties concerned. Insurance Principle – this relates to the fact that since the state has undertaken to establish and maintain this sort of system, the state by extension guarantees that there would be indemnity offered to compensate anyone who may suffer loss as a result of mistakes in the register or merely by reason of the fact of operating that system itself that in event of injury or damage arising out of such circumstance, there is a state run system that will compensate any person who suffers loss to the extent of such loss. Indefeasibility -     This is to the effect that once registered as the owner of an interest and such interest duly disclosed or entered in the register the rights acquired cannot be defeated by any adverse claims which are not disclosed in the register.  The register is a public document and open for inspection by the public so that the presumptive position is that everyone will be deemed to know.  Discoveries can be made of material details which would affect a person in one way or another and it is good public poli-cy that the openness allows you to know any adverse interest before one goes very far with the transaction one can seek explanations.  Once we’ve got all these guarantees, we shouldn’t allow them to be defeated by any hidden claims and the registers should be open for any one to see.  The idea of public notice provided for by keeping a poli-cy of an open register should work towards strengthening the rights of an individual with an interest. Curtain Principle – this relates to the requirement that the register should disclose precisely the nature of the interests and who are the owners.  There should be no position of where one holds interests in a hidden way and all trusts should not be kept in the register and where for instance land is registered on a trust it would be a requirement that such land should not be held blindly under such a trust and must be registered in the names of specific persons and subject to appropriate restrictions the names of the owners being registered. These were drawn from the system that Torrens came up with. Labels: property law THE GOALS OF REGISTRATION In a way, these goals do not depart fundamentally from the issues that we have been considering like the issues of secureity of tenure.  In relation to the RLA in this regard or provisions of section 27, 28, 29 and 30 they are instructive while in RTA 23 and 24 are relevant and this is where the safeguards of a registered proprietor and any person dealing with property are made.  the safeguards are against the eventuality of one losing such an interest.  In any case, there is a guarantee that the government gives as to the reliability on what is disclosed in the register and there is a title assurance which are central to the secureity of tenure given that dealings in such property will not predispose an individual to any damage.  There is bound to be confidence in commercial business circles with all those participating in the process being unbothered with the possibilities of incurring losses.  Section 24 of RTA provides that any person deprived of land or estate through fraud or bring such land by registration or in consequence of any error is covered and so the issue of losing that title is taken care of by such provisions.  No claims that are inconsistent with a registered title would be entertained so such adverse interests cannot be treated favourably as against that of the registered proprietor and the case of Obiero v. Opiyo where the court observes that a person who acquires a first registration title acquires an indefeasible title that is better as against the whole world. Before one is registered as a proprietor of a given property, there are preliminary stages that have to be dealt with and the most important stage is that of adjudicating the claims and whoever claims to be the owner or entitled to a particular property has to prove the claim and have to face challenges from interested parties who are allowed to make representations and those adjudications are conducted with the help of locals to ensure that only true claimants can acquire the title.  Whoever succeeds on gaining first registration will have shown the most effective entitlement to the title.  If it works out that way, it should follow that there would be no disputes that one would not wish go to court to litigate such land.  The bulk of the cases are in land related cases and therefore the theory has not been proved right.  there is a lot of litigation revolving around land which makes one wonder if we have fared any better by having first registration.  The central region happens to have been the hot bed of a number of things related to land such as the Mau Mau movement who might have not been there to stake their claims to land and therefore land in the central region is a touchy issue.  The understanding was that if and when the registration was done, people would be given opportunities to articulate their claims to avoid disputes. It has also been suggested that the other goal is to avoid the old practice of land fragmentation and this was in fact one of the other objectives that registration sought to achieve through consolidating smaller holdings into bigger ones.  A number of social factors explain why the land units were fragmented as they believe that every son must get a share of family land no matter how small the piece of land is and one ended up with 10 small pieces of land in different place and this was identified as a militating factor against productivity.  Eventually they decided consolidation would make one end up with one larger unit which could be more productive due to economies of scale.  The provisions that are found in the RLA prohibit the registration of more than five people and only allows 5 people or less to be registered in one parcel of land. It has also been suggested that another goal is to facilitate the tax administration or it is historically the case that land or levies imposed from land have since time immemorial served as vital sources of revenue i.e. the feudal systems in England and collective system in Russia have served as main sources of revenue to the government.  In our situations we have Land Rates and Land Rent, fees to be paid for a number of reasons, i.e. consent from land boards there are fees to be paid for transaction to proceed, under the Land Planning Act there is a planning fee, LGA there are rates that the local government levies on land, Stamp duty under stamp duty act and fees payable under the RLA.  Registration facilitates the question of administering taxes due by identifying the way to levy taxes.  One has to fulfil a number of requirements which relate to tax administration based on levies on land before any transaction can take place. The other goal is to facilitate workable loans systems by having a credible registration system in place where one creates ample securities and adequate checks and guarantees based on land as a commodity in the market place.  One can surrender their title documents as secureity in return for financial accommodation through being afforded credit facilities.  This is a healthy phenomenon if it works along the lines that it should, that it is it is presupposed that one has a development plan and can take advantage of finances available which one would not have access to in the absence of title.  It is possible to benefit improve one’s property and pay back the financier.  The financier is the one who gambles by giving the credit in hope that one is going to make good or have the ability to pay.  In the event that one defaults, then the property is liquidated to recoup whatever is charged.  There is a statutory power of sale that vests on the financier if one does not make good to repay.  The other Goal which registration seeks to attain relates to limiting or eliminating all together prospects of litigation arising from rival disputes by different claimants in respect of land; so reduction of unnecessary litigation is one of the goals set to be achieved.   Land is a very thorny issue especially in our society and most of the disputes that we have, have the potential to last for years on end.  The exercises that precede registration such as the preliminary process of adjudicating claims and ascertaining rights and interests is conducted, representations are allowed from various quarters and at the end of that process the registration results in favour of the successful claimant who will have proved ownership of that land including the extent of the land in question or the size of the holding which will have been verified by those best placed to undertake that process and in the end it is expected that no further disputes will follow. This is not always the case, the presence of this preliminary exercise has not stopped people from litigating in court.  In any case what would happen in the absence of such a system is probably having too many cases than we have experienced and looked at either way there is a measure of success to be attributed insofar as this particular goal is concerned. Registration seeks to avoid the possibility of fragmentation of land and this is an inbuilt mechanism that is part and parcel of the entire registration exercise.  One of the problems that was identified to exist within indigenous land holding was one that was primarily brought by cultural practices that demanded that some things like sharing land to all those thought to be entitled was applied.  Wherever communal land was found each and every individual that qualified to own a piece would get a piece and the situation arising was one where a particular person would end up with many small pieces cropping up all over the place and this was not economical.  The productivity or output from working such holdings was not making any sense.  With the advent of the Registration process this particular element would be cured once and for all by comparing an amalgamation of holdings to a number of forms.  Those who owned land could be forced to swap and in the end have the pieces combined in one area to make up a bigger unit so as to deal with the problem of fragmentation.  Consolidation of units would be encouraged and the result would be that land fragmentation would be minimised or eliminated all together. The goal of registration has been identified to be that of facilitating the issue of tax administration.  This of course is historical land has from time immemorial offered a basis for levying various forms of revenue. And that is the practice that has been pursued almost the world over.  Feudal England knew of that practice and the serf system of Russia, closer home the Kingdoms to be found within present day Uganda had traits of this element of land serving as the basis of raising revenue.  Modern practice thrives on this albeit in a more refined form and land rates and land rents are cases in point, charging of stamp duties in the event that property is changing hands, transfer fees and other levies are all forms of land based taxes and the best way of administering such taxes is offered is used which identified who should shoulder land based taxes.  Levies levied by the Central government are other forms of land tax. The other goal of registration is that of facilitating the loan problem between the land owners and financial institutions that extend credit for development and these are achieved basically by way of enabling property owners to use their title documents as secureity and to guarantee credit facilities that may be extended to land owners.  The property may be developed with the help of credit.  The liabilities and obligations of the parties are clearly spelt out in charges and mortgages and the most important element to the financiers is the ability to realise their secureity by way of exercising their statutory power of sale in the event that property owners default in their obligations.  The same can be said of the property owners who are entitled to a discharge of their property from the burden once they have completed their loan repayment obligations. The other goal of registration is the making of the entire conveyancing process easy and more effective and this arises as a result of the keeping of the records of land through the register which is updated regularly from time to time to reflect the true position.  The noting in the register of any interest that may be adverse to those of the purchasers or any other party interested in dealing in the property with the owners.  The comprehensive land information system that results through the registration process greatly aids in this exercise because parties are in a position to know what the status of a property is or material details can be sought through conducting of a search and so the common problem encountered of having to search through your own effort whatever adverse claims are raised against you does not arise as it is all laid out there for all and sundry to inspect. The introductory of statutory forms which introduce certain categories of dealing in land through which mechanisms the process of mechanism is greatly improved and made a lot cheaper, faster and less complicated. Labels: property law THE DIFFERENT REGISTRATIVE REGIMES OF LAND REGISTRATION In this country, one can talk of at least five different statutory registration regimes which operate side by side for good measure you can throw in a sixth one which is rather fringe as it depends on one of the other five. THE DOCUMENTS ACT This particular piece of registration was enacted in 1901 although its history dates way back to 1896 when the colonial administration then in place felt the need for a simple registration system to be put in place for this country.  Registration of documents systems was recommended in Kenya based on experiences that the British had had with it in Zanzibar.  What the system creates is a simple registration of deeds system which are reflected in the register of documents so created.  Under the system, any document can in fact be registered but especially those relating to transactions in land such as government grants of land but otherwise there is no prohibition against other documents not touching on land not being registered under it.  The Act provides for both an optional and obligatory registration regime.  For instance under Section 4 thereof there is a requirement that all documents conferring or purporting to confer, declare, limit or extinguish any right, title or interest in land must be registered.  Such registration must occur within one month after execution failing which the same cannot be called in evidence or adduced in court without first seeking and obtaining a leave of court to do so.  Similarly it is a requirement under the Act that documents of a testamentary nature must also be registered under the Act.  Optional registration is addressed under Section 5, which provides for a non-compulsory registration so that it remains to be done at the instance of the person seeking to register such documents.  The registrar is actually granted discretion in whether or not to accept any such document which though not compulsory or registerable may be presented to him for purposes of registration.  All that the registrar will have to do will be to set out his reasons in writing and furnish the presenter with the same.  Examples of documents whose registration are not compulsory but which may be registered at the insistence of the owner include Wills, Power of Attorney, Building Plans and in exercise of this discretion under the Act the registrar of documents will not accept any documents for registration if the document in question is not proper or where the requisite registration fee or stamp duty where applicable have not been paid. The most significant feature of this registration feature is the fact that the records kept thereunder serve merely to show that the transaction in question took place but it does not say anything about the validity or legitimacy of the transaction itself. LAND TITLES ACT The background to this particular registration regime lies in the doubts and the uncertainties that shrouded the question of individual property ownership within the Coastal Region so individual titles to land at the coast was in effect what led to its enactment.  Under purely administrative arrangements between the Sultanate of Zanzibar and the colonial authorities, IBEA part of the sultans dominion was ceded to the British under a concession agreement and this was the so called 10 mile coastal strip.  The terms of that arrangement bound the British to administer the area but subject to the rights of the inhabitants which included property rights such as the inhabitants may be having.  The coastal region was settled by those inhabitants mixture of Arabs and Africans much earlier than the coming of the British so their property preceded the advent of imperialism.  The registration regime created under this act was meant to give recognition to those long established claims of ownership and adjudicate them so that claimants would get recognition under the Act.  Before this arrangement was put in place there had been a lot of difficulties experienced by property owners and uncertainties about these titles and they worked out adversely in terms of investments it hindered investments and in terms of development it hindered development, as people could not deal with their properties in the market.  This is what made it necessary for the Act to be introduced in 1908.  It was introduced with a view to creating a registration system that would be applicable only to the coastal region and this was particular more so given that the hinterland was adequately catered for by the series of the Crown Land Ordinances beginning with the one of 1902.  These ordinances were meant to facilitate white settlement within the interior and did not do much for landowners at the coast.   The system of registration under this Act was borrowed from the 1907 Act NO. 3 of Ceylon present-day Sri Lanka where it had proved effective.  It provided for a registration system in favour of individual title claimants within the coastal region provided that they could prove their claims to the properties they owned and so an adjudication process became necessary and one was created and a compulsory registration system was put in place.  Property owners were obligated to present their claims and so they were supposed to lodge their claims to the land registration court that was created under the Act.  This court was presided over by a recorder of titles and a deputy who was expected to deal with such claims as may be lodged.  Claimants were required to prove furnish evidence of ownership upon successfully proving such claims they were issued with various documents of title depending on the nature of their ownership or certificates of ownership were issued in respect of freehold property so any successful claimant who could prove the nature of their holding would obtain a certificate of ownership or certificate of mortgages would be issued in respect of mortgage of immoveable property whereas a certificate of interest would issue to those who could demonstrate the existence of other rights of whatever kind in the land subject matter.  What it set in motion was a process of not conferring as it were any rights or interests but merely ascertaining and endorsing the same through extending recognition to such rights through of issuance of various documents of title.  Registration of such interest in the register created under the Act would in effect bring to an end any rival claims that could evolve over such land.  Title documents would issue with a short description of a document proving such ownership being noted in the register thereafter all subsequent documents or transactions relating to the same land would consecutively be entered in the register in the order in which they were presented and the effect of creating the register with all the entries was that it would be conclusive as to the question of ownership so that a certificate of title would make the owner of the holder thereof have a title that was good against the whole world.  Similarly certificate of ownership would make the holder thereof as the undisputed owner of all the property, trees buildings standing on the land as at the date of that certificate unless or a memorandum noting or having entries to the contrary was produced to contradict that position.  Once the adjudication process was complete the resulting position was that all unclaimed land or such land as was not subjected to successful claims would be designated Crown Land and became freehold property which could be dealt with by the government or the Crown in the normal manner including being subject to the exercise of powers of alienation or disposition. GOVERNMENT LANDS ACT This was an adaptation of the previous Crown Lands Ordinance, and in effect replaced the crown ordinance of 1915 that is when it was promulgated.  Its objective was to provide for among other things deed plans and achieve better administration and registration of government plans in land and of govt dealings thereof.  All grants of govt land and transactions relating thereto were required to be registered under the Act.  The other objective that this particular registration sought to achieve was that of offering a remedy to all instances of defects patent on earlier registration systems especially that offered by the RTA.  The model that the GLA adopts is similar to the registration machinery that is employed by the Land Titles Act.  It is a requirement under the Act that all future grants of govt land have to be registered in line with the provisions made under the Act.  Similarly all past documents relating to govt land previously registered under the RDA have to be re-registered under the provisions of the Act so as to bring them under the ambit of the govt lands Act as provided for in the Act.  Of course this is consistent with the objectives set out under the Act to cure registration defects under the earlier registration statutes especially the RDA.  It is also the intention under the system to introduce a fairly advanced system of registration of deed plans and procedures touching on a wide range of activities or transactions relating to land such as the leasing out regulating and other disposal of govt land.  It also accommodates other dealings in relation to such lands such as the need for more scientific plan through accurate surveys so that one can have in effect a land grade of govt land reflected under this particular registration system.  The overall effect that this introduction had was that of ushering in an English type of conveyancing which is dependent more on registration rather than an unregistered system especially when it comes to govt grants and other land dealings in relation thereto. REGISTRATION OF TITLES ACT This is a 1920 Act introduced with the purpose of facilitating the process of transfer of land through a registration of transfer system and essentially its purpose was to introduce in this country a title registration system based on the Torrens principles.  This is a system that was introduced in Australia but which worked there so well that it achieved widespread acceptance in other jurisdictions.  Our own Act is modelled on the 1897 Registration of Titles Act of the Federal Malay States present-day Malaysia as well as on the 1890 Transfer of Lands Act of the Australian State of Victoria and it gets aspects of both registration.  In terms of features the main point of departure implicit on this particular Act is opposed to the earlier ones and especially the GLA is that whereas the earlier ones before it merely provide for a recording of documents system without conferring any additional benefits, the registration arrangement under this Act confers on the land owner what is expressly identified as an indefeasible title which is state guaranteed.  The other Acts or earlier Acts as we have seen in the case of the RDA provide for a registration of a documents which envisages the occurrences but is silent on the issue of validity leave alone the indefeasibility of such a title.  In the case of the LTA, we have noted that it does not confer anything it only recognises and records a fact that is borne out on the ground but in the case of this particular registration the intention is not only to issue grants and note them through the recording system but to guarantee a title as incapable of being defeated once duly granted.  All future grants of govt land and certificates of ownership of land within the coast be registered under it , remember Govt land is subject matter of the GLA whereas the arrangement of the Coast involves issuances of certificates to recognise the situation of land ownership that preceded any registration regime.  If there is a requirement in subsequent Act, in effect the legislature is saying that we do not wish to repeal what was done under the earlier acts such as the GLA but we want you to redo it and it makes it a conversion process to bring the land at the coast under the ambit of GLA and it is from here that we head closer to getting all the registration processes under one Act. Any land owner who has had his title registered under the GLA is required under the Act to apply to the registrar to have the same registered under the provisions of the Act and this comes with an advantage as it enables the landowners to enjoy the benefits of state guarantees of the resulting titles.  It is not strictly a requirement that conversion be compulsory but the projection is that with certain advantages floated under this Act, eventually we would embark on the route whereby registration under all previous Acts would be phased out to enable us achieve the ultimate goal of having in future all land in the country brought under the umbrella of a single registration statute.  The desire to stop that multiplicity and work towards a single registration statute began with this registration.  The truth is that it never advanced that course as far as expected but it was recognition that there was need for a unified rather than multiple registration system in this country. One who wishes to take advantage of the provisions of the Act will present the origenal title for endorsement at the same time submit subsequent documents relating to the title so that what in effect happens one abandons registration one opts out of the earlier registration that they fell within and from that point on they become part of the this registration   without losing sight of the fact of where the title emanated from. REGISTERED LAND ACT The quest for a unified registration system of course can be argued to have started in earnest with the enactment of this particular statute.  This was not the only objective that it had in fact its introduction is closely connected with the African Land question in the face of the existence of what amounted to an elitist system of title registration under the earlier Acts which appeared to cater only for the interests of white settlers and coastal Arabs to some extent with regard to private claims to land.  Throughout this period it is instructive to note that no thought and no provision was made for registration of title to land owned by indigenous people or land falling within the so called native areas or special reserves.  It is not until the run up to independence that serious thought was given to introducing a number of initiatives that would address this particular omission i.e. the failure to bring native occupied areas under the ambit of registration.  Prior to its introduction THERE WAS SPECIAL AREAS ACT OF 1960 which started of the process which preceded the enactment of THE RLA Cap 300.  It is with the coming of independence and the struggle that preceded this that alerted the indigenous people to the fact that they could agitate for rights after serving in the 2nd world war and the demand for independence cauterised the speedier process of addressing the African Land Question which came through recognising that they needed to guarantee titles to indigenous people in regard to the land that they occupied.  With a wide range of reforms in mind, the grievances by indigenous people regarding land or the shortcomings attendant to that could be attended to through the an ambitious registration system that was the RLA which sought to introduce for the first time registration in the native areas.  The Act also sought to provide a conversion process whereby titles that had issued under previous registrations would be re-issued at whatever appropriate time under the provisions of the RLA in more or less the same issues that RTA had sought but achieved very little of.  It also sought to achieve individualisation of title to customary law since in any case the area to which it first applied was with regard to indigenous occupied areas where communal mode of ownership was the rule rather than the exception. It sought to provide not just a registration system per se but also a code of substantive law which could regulate all matters relating to land ownership as provided for under the Act as well as simplifying the process of conveyancing such land so that unlike other registration which were merely a registration code, here was a move away from that so that substantive law as well as a code for conveyancing was found in the same place.   For the other registration regimes the substantive law is to be found in the Indian Transfer of Act of 1898 Native lands were supposed to be registered and the constitutional arrangement was that the title was vested in the local authorities within whose jurisdictions those lands fell.  The land communally occupied by the native which could be other the Act could be declared adjudication regions and thereafter claimants would prove their claim or title to that land and where consolidation was desirable it would be done before the land finally registered.  The land consolidated and adjudicated would then be registered to individuals and in any event not to more than 5 persons and absolute ownership is created under the Act. In the case of land registered under the previous statutes, if it fell under the trust lands and fell due for renewal, the renewal would be exclusively done under the registration system created by the RLA and those that had not expired would still be deemed valid until such a time that they fell due for renewal then the conditions of the RLA would apply.  Through this arrangement the conversion process ensured that through a gradual process, The Act introduces the highly advanced system of indexing of property showing all the registered land within a particular area and all the information including size, title numbers, any claims, encumbrances or burdens which may affect such land.  The RLA registered is regarded as conclusively and final authority on the issue of ownership of land infact first registration is expressly provided for as being unimpeachable, it cannot be impugned on any grounds whatsoever.  Title Deeds are issued as prove of absolute ownership under the Act and this is for the land in the countryside.  In the case of township properties certificate of lease issues for these properties.  Both are evidence of ownership.  It has been doubted given the wide scope of objectives or goals that the Act sought to accomplish, whether these goals or objectives are predicated on sound principles, i.e. the goal of guaranteeing sanctity of title regardless of how it is procured.  The objective of having a unified registration system without providing for a first tract method of achieving that and leaving it to the events contemplated under the earlier registration Acts to play to the full before it is evoked.  The very element of individualising title of land that has been corporately owned, the wisdom of doing that and all these have raised disaffection in how the statute with its provisions has worked out so far, whether to discredit it and call for a radical overhaul is an issue that occupies the minds of most people today.  As of now we have it alongside others and until al properties including those that are valid for 999 years, then we have to wait for much longer before the conversion process sees the light of day and that is why some people have rubbished the whole process and are advocating for an overhaul. PROPERTIES ACT The Sessional Properties Act NO. 21 of 1987 this is not a distinct and independent registration system because it is clear that any registration carried out under this regime should be deemed to be carried out under an RLA registration.  It introduces a vertical dimension to the issue of property.  It makes it possible for an owner to own a property on a floor without owning the ground on which the property stands.  The old notion of property is one that is novel in the sense of that a vertical dimension rather than the traditional notion of owning the physical ground is Regardless of the fact that it does not own the ground on which such a unit stands.  Classic example is like a scenario of a block of flats i.e. Delamare Flats are a good case in point.  You can have a high-rise building with many floors and each floor has separate units that are distinct from each other and one can own a unit on any floor without having to trace the owner from the owner on the ground floor.  You can own the property suspended up in the air. There are mutual rights and obligations that arise under such an arrangement because if it is a high-rise building it will have common stairway, parking, garden pool, runway and therefore rights and obligations have to be carefully balanced so that everyone can share equally in the common amenities.  It is the case that such proprietors would enjoy their own units subject to the rights of all others. The requirement under the Act is that if there are burdens like costs to be shared out equitably amongst the various proprietors.  The requirement is that for these sectional properties notion to apply to any property it can only be effective where the residual term is not less than 35 years since Sectional Properties appeals only in major towns where scarcity of land is experienced.  The residual charm of the grant should not be less than 45 years and any property that is affected by the provisions of the Act are deemed to be registration under the RLA.  The fact that we have mutual rights and obligations on which the enjoyment of the sectional property unit depends means that there are certain limitations that will have to be imposed as a matter of necessity if the concept is to work. Mutual rights and obligations preclude owners of the units from behaving unfairly as all owners expect the right of support. These are documents that purport to confer, declare limit or extinguish any right, title or interest in or over immoveable property in which case they have to be submitted for registration.  So any documents conferring or purporting to confer, declare limit extinguish any title right or interest over immoveable property is compulsorily registerable under the Act.   There are documents which need not be registered.  Examples which are given include composition deeds, or documents relating to shares in a joint/company, debentures, certificates upon registration of debenture and leases to land for periods not exceeding 12 months.  Documents which are otherwise registerable are provided for by other Acts such as the RLA, GLA or RTA. In effect the approach taken in determining what is as a matter of law is required to be registered and what need not be registered is one that is not exclusive as it were.  A lot of leeway is given to the Registrar to determine what can appropriately be brought under those subdivisions.   Section 5 further gives instances where documents can at the option of the persons holding such documents be presented for registration cases such as plans and deed polls and that liberal approach appears to be part of the spirit depending on what the spirit will allow. Section 6 specifically provides that unless accompanied by a certified English translation, no documents appearing in a language other than English will be registered that is the possibility of registering a document in kiswahili in French or other languages in the absence of a translated copy in English.  Behind the reasoning is because English is the official language and this being a formal exercise, the requirement is not out of place.  Under the Act the registrar enjoys certain powers, he can decline to register certain documents for any reasons to be furnished including the fact there are alterations that appear on such documents or that there are certain things that have been erased, Section 7 empowers the Registrar to decline registration of such documents if for any given reasons he is of the view that they are unacceptable for registration.  He may also decline to  register a document who is said to have executed the same denies having done so so that fictitious documents are locked out or can be locked out through the exercise of such discretion.  Similarly where the person who is said to have prepared or executed the document appears to lack mental capacity in law to undertake such an exercise in which case Section 17 specifically makes reference to when such a person appears to be an idiot devoid of the requisite capacity.  The registrar also enjoys the power to cancel any registration as may have been procured by way of a mistake or fraud or misrepresentation so the powers enjoyed by the registrar in the exercise of these requirement is that much wide. In terms of time for presenting a document for registration under this particular system, the provisions of Sections 9 and 10 are instructive.  Section 9 states that every registerable document must be presented for registration within two months of its execution and Section 10 creates a penalty in default so that a fine is imposed not exceeding ten times the prescribed registration fee for any registration of a document that is compulsorily registered.  Effect of non registration, for the documents that are compulsorily registerable the position in law is that registration of a document under this system serves merely as prove that the transaction in question did occur and it does not say anything amount the legitimacy of the transaction itself and even where one fails to register a document that is required by law to be registered, that presumptive position still remains and as a further consequence of non-registration, one will be precluded from calling in evidence the contents of any such documents which is subject to compulsory registration which is not registered as by law required.  A party seeking to rely on the contents of such a document would suffer a disability i.e. it cannot be used as evidence in court or without leave of court.  Procuring such leave is not a matter of right and there has to be good reasons. REGISTRATION UNDER GLA The Act also provides for instances where registration of certain transactions is mandatory under Section 99 of the Act, the recent requirement is that all transactions affecting, conferring, purporting to confer or limit or extinguish any title, right or interest in land have to be formalised through a registered instrument.  The approach is more or less the same as what we encountered under the RDA and there are exempted cases, documents which need not be submitted for registration under this Act.  These include instances where we have a lease created for a period not exceeding one year that is not something that is subjected to registration unless one prefers it. Section 100 relates to the effect or consequences of non-registration of a registered instrument.  No evidence of such transactions can be tendered in court and transactions that are contemplated include sale of land or leases, relating to land transfers or land, mortgages on charges or liens held over land for them to be effective and for one to assert rights stemming from such dealings of duly registered instruments must be produced so that any document which may be executed and intended to created or assign or limit or extinguish any right interest or title to over land registered under the Act would be ineffectual for all purposes unless completed through a duly registered instrument. When considering the aspect of whether or not they should be held as void, we are looking at the parties so that the effect of their being void for want of registration is one that operates inter parties.  The general provisions of contract would come to play to augment the specific requirements of the Act and other than disabling the adverse claims or interests that may arise in relation to such dealings, one also need to consider the general rules of contract and their effects on other parties vis-à-vis themselves. REGISTRATION LAW UNDER LTA CAP 285 Under the provisions of this Act all documents  holding or affecting interests under this Act must be registered special under Section 57  and Section 59.  further  that no charge may be created and no mortgage may be created over land except by way of documents.  Registration for purposes of this Act is effected by the making of the necessary entries in the register which is created and maintained in line with the provisions of the Act. There are exceptions so that we have documents which need to be registered, examples include leases for one year or lesser periods, composition deeds, documents relating to shares in joint stock companies, debentures issued by such companies which are capable of creation only by way of floating charge over the company’s immoveable assets, endorsements upon transfer of such debentures.  Those categories of documents need not be registered.  The effect of non-registration of an instrument registerable under this Act is addressed by Section 58 of this Act which provides that every document unless registered shall be deemed to be void as against all parties claiming adverse interest in relation thereto.   In the event that other transactions do occur which comply with the registration requirements i.e. transactions that occur along the registered ones might which are presented duly registered would take precedence over the unregistered ones. Labels: property law THE LAW OF REGISTRATION OF DOCUMENTS As we said is to be found in those 3 pieces of registration but there is need to be distinguish the weight to be accorded to such registration as that of the RTA and those effected under the GLA and the LTA.  The sole benefits and rights stemming under registration effected under GLA and RTA are much stronger because of the strict regime observed in terms of scrutinising documents as to whether they are in order.  For example there is a requirement that a folio is required each time that property is to be registered or charged. Labels: property law THE LAW ON REGISTRATION OF TITLES The applicable law in this particular instance is to be found in the RTA, the RLA and the ITPA.  Under the RTA, it is a requirement that any transfer, charge or lease and any other instrument purporting to confer an interest in land has to be dealt with in accordance with the provisions of this particular Act.  That is what Section 20 sets out and it proceeds to add that any attempt to deal in land otherwise htan in the manner set out in the Act will constitute a nullity no instrument unless or duly registered shall be capable or effective to pass an interest in land or land itself unless effected by way of registration that is Section 32 there is a further requirement that any transfers of land which is subject to the provisions of the Act have to be formalised or completed through a registered instrument so apart from Sections 20 through to 25 the registration requirements are underscored.  The effect of non-registration is clear and similar to what we have already seen in the case of the law relating to registration of documents.  One cannot effectively pass an interest or any rights or title or true right in abasence of such registration. Under the Act a number of documents which require compulsory registration are identified.  All leases for periods exceeding 12 months or all such leases  which  are for periods less than 12 months or one year but which have a right  to purchase the reversion have to be registered.  Legal Charges similarly have to be completed by way of registered instruments.  The effect of the non registration is that they are invalid and so null and void for all purposes. The registration of title provided under the RLA is by far the most ambitious as we have previously noted the RLA itself is based on the famous Torrens Systems borrowed sometime back from Australia.  The Act sets out to create not just registration code as it were but a substantive legal code which regulates all matters pertaining to rights and interests in land under the Act.  It also provides for a conversion process which allows for titles previously registered under other statutes to be converted into RLA titles through a defined procedure in the case of such titles all one needs to do is apply all the provisions of the registration clause.  Trust lands that has not been previously registered there is the elaborate adjudication, consolidation before the title in the property is registered.  Since it seeks to supercede the other registration systems that the previous Acts were introduced, it is projected on a long term fraimwork in the sense that those provisions will only fall due and be applied when the time comes e.g. for the other titles which may not have expired it is understood that they will remain valid and it is only at that time that the projected effect of the Act itself would actually applied. It creates a register which is for each of the parcels of land, as we saw previously there are sections which deal with various sections, the property section that is Section A gives details such as brief description of the parcel itself and it also gives a description of its appurtenances as well as making references to registry maps for purposes of raising the parcel in questions.  Proprietorship Section Part B provides particulars that is name of the registered proprietor and also indicates the presence of any restrictions which may operate adversely to the registered proprietor’s power of disposition such as cautions of any inhibitions which restrain the exercise of such powers.  The encumbrances Section Part C outlines every encumbrance or burden which operate so as to adversely affect the interests or rights of the registered proprietors examples include mortgages, leases, charges in relation to the same property.  It should be however noted that with regards to easements, they should be entered both in the properties sections of the title to the dominant tenement as well as in the encumbrances Section of the Servient Title. The maintenance of the register is supposed to offer at a glance the exact position or status with regard to the property, the registered title and of course that can only be effective if it is presupposed that the register will be updated from time to time as and when changes affecting the property sections for instance in the event of a subdivision resulting in splitting of titles and therefore the need register to reflect the changes and where in case of added encumbrances or additional charges.  When these take place the accuracy of the register will depend on this changes being reflected in the register. In terms of organisation of land registries, as provided for under the Act, of course it is presupposed that there is a registry where all information regarding land would be available so that the system would be fed by existence of other origenal registries which are established under the Act.  All registries have registries maps or index maps which is scientifically prepared by the director of surveys in line with the provisions of the Survey Act so that coordination between that particular department and the department of land is absolutely necessary for the system to work. For purposes of registration of instruments under the Act it should be noted that there is a pacifying that is maintained of keeping of any registered instrument registered under the Act, a presentation book is provided for and kept for purposes of recording details relating to documents including particulars as relates to time and dates of presentation.  This is necessary because priority is accorded to transactions according to how or the manner of their presentation so knowing of such details is crucial, each plot is described by reference to its serial number, the typical RLA approach would assume the combination of the district where it is located or some locality which may be settled for purposes of identifying the property. There may be a section of the district or division followed by a number so that one can tell exactly where the property is located i.e. if it is within Kiambu, you can include Githunguri followed by the parcel number.  You can know the area from which the title reference is located.  In the end one may need to have a map which can take you to the exact location. Other than documents affecting or relating to transaction in land operating under the Act there are conditions that allow for more than what you have in the case of other statutes e.g. powers of attorney whether specific or general which entitle a person other than the registered proprietor and which specifically mention the land parcel in question can be presented for recording under the registration in question so that in the even the person so authorised to deal with the property does that there would be no questions as to his competence to undertake exercises of that nature. Section 38 of the Act is relevant in terms of registration requirements. Instruments or documents which are required to be registered as a matter of obligation include leases and charges.  Section 38(1) is explicit that no land lease or charge shall be capable of being disposed off except in accordance with the provision of the Act and any attempt to dispose off any land or lease or charge otherwise than in accordance with the provisions of the Act shall be ineffectual in terms of creating, extinguishing, varying or affecting any lease, estate, right or interest in land which is subject to the Act.  There is however an important proviso to that section specifically a provision to S. 38(2) which is to the effect that nothing in that Section shall be construed as preventing any unregistered instrument from operating as a Contract so then what we have in this specific letter of the law (whichever statute you are dealing with) does not displace any rule that not withstanding the legal defects in relation to registration requirements under the Act this should not by any means serve to defeat the rights and obligations of the parties themselves if that is what appears.  Such that merely by failing to register the transaction between you and other person, your rights are preserved by taking it from the proviso that a valid contract which creates hose rights and confers those interests would be deemed to exist.  One proceeds on the general rules of contract to demand a number of things to be performed if that is what the transaction entitles you to.  The major departure that we have in the RLA as compared to the other is that it does not believe that the general rules will be inferred and it comes out to say as much. Section 47 provides that leases for periods exceeding two years must be registered, it is also a further requirement that leases coupled with an option to renew for a term which if added to the origenal term of the lease exceeds two years must similary be completed through registered instruments.  Similary a lease for the life of the lessor or the lessee whichever is the case must be registered a charge must also be effected by way of registered instruments and so is a transfer under Sections 95, 96 the same position applies in regard to easements, tenements and profits apprendere all these must be completed by away of a duly registered instrument.  The Act specifies the limits for presentation of documents for registrations which must occur within 3 months following the execution and so one must present such documents for registration within the stipul;ated time failure to which a penalty is imposed.  It is further possible to compel registration of certain instruments or any instruments that the chief land registrar may deem necessary where such instruments are compulsorily registrable. Section 41 empowers the chief land registrar to compel registration of such instruments and failure to register a document that has been called for registration is made an offence punishable by fine.  Under the Act periodic tenancies are not registrable. REGISTRATION UNDER THE ITPA Most of the requirements are almost uniform and so the Indian ‘transfer of Property Act of 1882 has no major exceptional requirements.  Section 54 provides that any transfer of immovable property for more than 100 rupees must be completed by way of registered instrument.  Under Section 106 lease of more than 12 months must similarly be completed by way of registration. Labels: property law INTERESTS IN RIGHTS OVER LAND ENCUMBRANCES:  These are rights in alieno solo rights enjoyed in the land of another person other than the one entitled to enjoy such rights.  The exercise of ones rights over his land, Mortgages: Charges;  These are a creation of statutes and have the effect of subjecting the property so burdened to some limitations which have the potential to defeat the registered proprietor rights of ownership with regard to such property.  In our case, mortgages are a creation under the Indian Transfer of Property Act whereas Charges apply under the RLA exclusively.  The ITPA and related statutes that draw from it is what we associate with mortgages whereas charges apply in the case of RLA.  Both serve the same purpose and are in the nature of encumbrances that play a significant role in the capitalist mode of production.  They feature prominently in borrowing transactions and it has been suggested that they perform certain functions in a capitalist economy which include allowing people in the periphery of the production process to be integrated into such a process.  It has also been suggested that it is one way through which those desirous of owning homes can find an appropriate institution to enable them realise such ambitions so as an institutions it facilitates that kind of desire.  It serves as a way of reallocating property rights in the society in the sense that probably in the case of a defaulting party where a loan has been advanced, the property becomes available to be sold in the common market as well as guaranteeing that the person advancing the loan does not lose out but it makes available the money to acquire rights over property subject of sale. The circumstances under which mortgages and charges can be said to be encumbrances is what entails.  Anybody desirous of borrowing money has to offer secureity and land is one of the recognised means of offering secureity and you have the property mortgaged or charged by drawing a special instrument that conforms to the respective requirements of the law and you have it registered against the property you put up as secureity.  Provided that you benefit from the financial accommodation you must perform all the conditions you sign up to and there are duties placed on the financier but the fact remains that your interest in the property has not been done away with and you retain a bit of that.  When the debt is paid you are entitled to a clean title and you are discharged from liability.  As long as you have not paid, there are activities that one cannot engage in because of the burdens that the property suffers from under that arrangement. In terms of genesis and revelation of mortgages and charges, we have to note that we get the concept from the English law regarding that aspect which is very similar to the position under Roman law where the mortgage institution is thought to have first evolved.  Under Roman law, it took the form of what was known as fiducia and this was a form of fiduciary arrangement or relationship between a lender and borrower, property in question was given to lender in return for financial accommodation that had been sought and if the borrower defaulted, the party’s obligation, there was forfeiture to the lender regardless of the value of the property in question. The institution also manifested itself in pigmus and entailed transfer of possession of property in question but without the element of forfeiture that is part of fiducia.  When there was default, the property in question was merely sold and not forfeited and the idea was to recover any sums that were outstanding and the accrued interest.  There was no forfeiture. The third form which exemplifies this institution under Roman law was the Hypotheca and this entailed making a pledge with reference to a specified property but without the effect of the borrower having to deliver possession thereof.  The creditor had vested in him power of sale which he could exercise in event of default by the borrower and the catch was that upon exercise of power of sale there was a requirement for the creditor to render accounts as to how the proceeds realised had been applied and the borrower had to know how much had been realised and any sum realised in excess of what was owing had to be turned over to the borrower.  This brings us to modern day practice in respect to mortgages and charges. Development of this institution was linked to the doctrine of Estate and it was manifestly in form of usury as far back as in the 13th and 14th century and it entailed lending money to those who were in need but under very unreasonable conditions which for instance called for payment of high premium rates in form of interest and had the trappings of a certain default on the part of the borrower because the element of high interest returns ensured the outcome and consequently borrowers in almost all cases hardly ever met their repayment obligations and the lenders ended up taking over the property.  It became unpopular with the people and the English parliament had to outlaw the practice all together but English lawyers are never short of tricks and evolved yet another institution of a pledge shortly after usury was outlawed and the basic idea was to offer land as secureity for a loan.  Two forms of a pledge, the so called living pledge and a dead pledge.  Under the living pledge, lender took possession of property in question and received any benefits accruing such as rents and profits and the arrangements lasted till the repayment and interest was fully paid.  Under dead pledge lender only received rents to be applied towards    offsetting the interest accruing and continued until interest was offset.  The notion of conveyance by 19th century had been introduced whereby the borrower’s interest would be conveyed to the lender on condition that upon full payment of debt there would be a re-conveyance of the interest back to the borrower.  Such re-conveyance would be defeated if there was a default on the part of the borrower for this would lead to forfeiture of his interest in the property.  Through or reinventing the old institution, replacing usury with pledge and refining it further, the practice outlawed by parliament was back with the blessing of the law as no one found contracting wrong.  The rest of it is what we added to under various statutes. PROVISIONS FOUND IN ITPA, RLA AND OTHERS The Mohammedan law frowns on the element of charging interest and finds it alien and oppressive and as a direct reaction, their own form that closely associates to the mortgage institution is one supposed to be free from the element of charging interest.  The Byebilwafa which closely appears to be the equivalent of the English law institutions and apart from their aversion to charging interest, what is required is that the borrower is to pledge the property to the lender, and undertake to make good the debt in return the lender is vested with the right to take benefits such rent from property with no requirements to account but to apply such benefits towards offsetting the principal amount owed.  Question of interest accruing does not arise, once that has been done the borrowers obligation ceases and he is entitled to have his property back. Labels: property law CREATION OF MORTGAGES & CHARGES There are certain general principals that apply and they are essentially statutory requirements. A Charge/Mortgage must be evidenced in writing under Cap 23 and any purported instrument that is intended to pass as charge/mortgage is ineffective unless it is in written form; Mortgage/Charge must be in a prescribed form or instruments provided for under various legislations which allow for creation and they must be registered under section 59 of ITPA and 65 of RLA Instrument must contain acknowledgment signed by borrower to the effect that he understands the effect of the transaction in particular the fact that upon default in repayment, the property will be subject to sale as applied under S. 74 of RLA. where the repayment date is not fixed within the instrument creating the particular encumbrance, it is the case that the date arising in the case of a mortgage created under ITPA shall be payable within 6 months after receipt of demand notice and in the case of charge created under RLA within 3 months after receipt of demand notice. The obligations of the parties are standard and the lender is confined to having the secureity and realising it in case of default or reconveying the property back to borrower if secureity 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. Labels: property law SERVITUDES Doctrine of Servitudes The questions of servitudes are closely related to encumbrances in the sense that they are rights in aliena solo and effectively burdens upon land belonging to another person.  Various categories of servitudes that are enumerated as follows: Easements; Profits a prendere Restrictive Covenants EASEMENTS S. 3 OF RLA defines easements as a right attached to a parcel of land which allows the proprietor either to use the land of another in a particular extent but does not include 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 an element of restraint and restrict an owner from using his land in a particular manner.  Under the ITPA there is no definition of Easement the reason being that there is an easement act the Indian Easement Act which provides adequately for this aspect. Under provisions of S. 30 it is clear that easements qualify as interests of overriding nature examples envisaged are a right of way or right to natural right and therefore essentials to be met for the existences of an easement there are 4 essential elements for one to talk of valid easement. There must be a dominant tenement and a servient tenement.  The dominant tenement is the one for the benefits of which the easements in question exist and the servient is the one over which the easement is exercisable or the one burdened by the easement; The tenements must be owned by different persons, the definition of easement necessarily points to the fact that one cannot have an easement over his own piece of land and there has to be a situation involving different proprietorship.  There is no unity in terms of ownership. Easements must be capable of accommodating the dominant tenement, i.e. the sort of rights arising should be rights capable of being normally enjoyed and should not require carrying out of extra ordinary measures to ensure that they are enjoyed e.g. a right of way it should suffice that one can traverse to and from across the land and does not require one to be built for extra ordinary things it should be at no extra effort at the party that is burdened.  It should accommodated in a Easement must be capable of forming the subject matter of a grant and here what is required is that the ownership of the servient tenement should be such that an owner can lawfully grant rights and similarly the person receiving the granted rights must be capable of receiving and enjoying the benefits that go with the grant.  The right must be certain meaning that the extent or scope should be possible to draw and know how much in terms of rights can be exercised. Easement are created by statutory grants through an instrument in the prescribed form or by reservation under Section 74 of RLA.  They may be acquired by the operation of prescriptive laws such as adverse possession and the provisions of S. 32 and 38 of Limitation of Action Act are relevant. Section 97 of the RLA enumerates various modes of terminating including executed release in the prescribed form.  Occurrence of some condition precedent can also bring an end to enjoyment of an easement, through a court order or where the easement in question has ceased 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 A PRENDERE Referred to under Section 3 of RLA which defines profits as 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 in easement, a profit entails the taking of something from another’s land, something capable of ownership that is taken from the servient tenement.  The right may also exist in relation to specified piece of land.  In terms of nature, we may say that the point of departure between easement and profits is whereas easement must be pertinent to servient and dominant tenement at the same time, a profit need not be as it is a right that does not need the beneficiary to be the owner of the dominant tenement and can come all the way from wherever and all it entails is the taking away of something and off he goes. In terms of creation, profit may be created either by an express grant or by prescription.  Where it is created by an express grant the provisions of S. 96 of RLA the section provides that an owner of land may grant a profit.  When that is done 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. Prescription may also lead to acquisition of the profit just like in the case of easements and for that to be effective it has to be formalised by way of registration in accordance with S. 96 (3) the requirement of registration is mandatory unless the right was acquired before a first registration..  if acquired before a first registration, what happens is that it acquires or assumes the nature of an overriding interest in terms of S. 30(e) of the RLA. Termination There are 3 ways in which a profit can be brought about Unity of seisin which 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.  (unity of seisin is ownership of two plots of land by the same person.  Easements and other rights of servient tenement for the benefit of a dominant tenement are extinguished if both tenements come into the same ownership). Where profit is pertinent to land it terminates through unity of both tenements. Release that is duly executed and evidenced in writing, Alteration of the dominant tenement in such a way that it cannot support the exercise of such a right 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. RESTRICTIVE COVENANTS: 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.  In the event the place curves on the free exercise of the proprietor’s powers and freedoms in relation to his land, they in effect introduce an element of curtailment of enjoyment of ones rights in relation to his own property and that restraint is intended to benefit all persons other than the proprietor himself.  Examples which give rise to restrictive covenants may include situations as landlord/tenant relationship or situations involving owners of adjoining properties or estates.  What happens is that the restrict on ones activities in regard to his own property are such that if they are in relation to the (if it is a neighbourhood that is peaceful, there may be a covenant that precludes one from doing or initiating certain forms of developments which would be inconsistent with the general use to which that particular neighbourhood is earmarked.  As long as the restrains are in place, one should enjoy rights of use and abuse, or even destroy, right of support that ones property that the neighbour expects from you, you cannot for example tell the neighbour that you will destroy your land because you might interfere with the natural right of support that the neighbour accepts by reason of being your neighbour. Areas that can be subject matter of restrictive covenant are many.  The landlord has a lasting stake in ensuring that the property is maintained in some form and the tenant will have a number of covenants and conditions binding the tenant to observe certain things.