Экзамен зачет учебный год 2023 / Simpson, Land Law And Registration

KENYA REGISTERED LAND ACT AND RULES

easements created thereafter must be registered in order to be binding (see comment on s30(a)).

It should be noted that an easement cannot exist 'in gross' (i.e. otherwise than as a right attached to land, known in English law as the 'dominant tenement' as distinct from the 'servient tenement' which bears the burden). Thus a public right of way is not an easement (and, indeed, has not been provided for in this Act, an omission which should perhaps be repaired). In New Zealand, however, it is expressly provided that "an easement over land may be created without being attached or made appurtenant to other land" (Property Law Act 1952 s122), and several Australian States have similar enactments resulting, according to Baalman (Singapore 162), "in a considerable amount of technical confusion" which has been avoided in Singapore, and which is similarly avoided here.

Restrictive agreements

95. (1) Where an instrument, other than a lease or charge, contains an agreement (hereinafter referred to as a restrictive agreement) by one proprietor restricting the building on or the user or other enjoyment of his land for the benefit of the proprietor of other land, and is presented to the Registrar, the Registrar shall note the restrictive agreement in the encumbrances section of the register of the land or lease burdened by the restrictive agreement, either by entering particulars of the agreement or by referring to the instrument containing the agreement, and shall file the instrument.

(2)Unless it is noted in the register, a restrictive agreement is not binding on the proprietor of the land or lease burdened by it or on anybody acquiring the land or lease.

(3)The note of a restrictive agreement in the register does not give the restrictive agreement any greater force or validity than it would have had if it had not been registrable under this Act and had not been noted.

(4)In so far as the restrictive agreement is capable of taking effect, not only the proprietors themselves but also their respective successors in title shall be entitled to the benefit and subject to the burden of it respectively, unless the instrument otherwise provides.

(5)Notwithstanding the provisions of this section or of any other written law, any agreement, condition or restriction contained in any instrument (whether executed before or after the commencement of this Act) whereby persons who are members of a particular race or who are not members of a particular race are prohibited or prevented from owning or from occupying any land or from acquiring an interest therein shall be void.

KENYA REGISTERED LAND ACT AND RULES

This section enables a restrictive agreement to be noted in the register. Unless it is so noted it will not be binding on the proprietor of the land burdened or anybody who acquires it from him, but the noting of it in the register does not confer on it greater force or validity than it had before. Thus it is not incumbent on a registrar to decide whether an agreement is registrable, let alone enforceable, or not. The section is based on Sud 57 and E 50 (cf. Sing 111).

Subsection (5) was aimed at a particular situation in Kenya, and has not been repeated in subsequent versions of the Act elsewhere. It is only of interest as being an example of very positive substantive law.

Profits

96. (1) The proprietor of land or a lease may, by an instrument in the prescribed form, grant a profit.

(2) The instrument shall indicate clearly the nature of the profit, the period for which it is to be enjoyed and—

(a)whether it is to be enjoyed in gross, or as appurtenant to other land or a lease; and

(b)whether it is to be enjoyed by the grantee exclusively, or by him in common with the grantor.

(2) The grant of a profit shall be completed—

(a)by its registration as an encumbrance in the register of the land or lease which it affects; and

(b)where it is appurtenant to other land or a lease, by its registration in the property section of the register of the land or lease to which it is appurtenant; and

(c)by filing the instrument.

(4)A profit which is not appurtenant to land may be dealt with as though it were land.

(5)A profit granted by the proprietor of a lease shall be capable of subsisting only during the subsistence of the lease.

This section provides for the grant of a profit which, like an easement, will not be an overriding interest unless it subsisted at the time of first registration.

Subsection (2) is based on Sing 84(3).

Subsection (4) is necessary to enable a profit to be transferred or otherwise dealt with since, unlike an easement, it may be held in gross (i.e. unconnected with the ownership of other land).

Release and extinguishment of easements, profits and restrictive agreements

97. (1) Upon presentation of a duly executed release in the prescribed form, the registration of the easement, profit or restrictive

KENYA REGISTERED LAND ACT AND RULES

agreement shall be cancelled, and thereupon the easement, profit or restrictive agreement becomes extinguished.

(2) On the application of any person affected thereby, the Registrar may cancel the registration of an easement, profit or restrictive agreement upon proof to his satisfaction that—

(a)the period of time for which it was intended to subsist has expired; or

(b)the event upon which it was intended to determine has occurred.

This section provides for the cancellation of easements, profits, and restrictive agreements either by agreement or by determination. (Cf. Sing 82(1) and 83(1) with regard to easements, but there seems no reason why profits and restrictive agreements should not also be dealt with together in one section as here.) In the Malawi and Caribbean versions the last two words of subsection (1) have been corrected to read "shall be extinguished".

Discharge and modification of easements, profits and restrictive agreements

98. (1) The court has power, on the application of any person interested in land affected by an easement, restrictive agreement or profit (whether created before or after the commencement of this Act) by order wholly or partially to extinguish or modify the easement, profit or restrictive agreement (with or without payment by the applicant of compensation to any person suffering loss in consequence of the order), on being satisfied—

(a)that, by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which the court deems material, the easement, profit or restrictive agreement ought to be held to be obsolete; or

(b)that the continued existence of the easement, profit or restrictive agreement impedes the reasonable user of the land for public or private purposes without securing practical benefits to other persons or, as the 'case may be, will unless modified so impede such user; or

(c)that the proposed discharge or modification will not injure the person entitled to the benefit of the easement, profit or restrictive agreement.

(2)Subsection (1) of this section applies also to a restrictive agreement contained in a lease (whether created before or after the commencement of this Act) for a certain period exceeding seventy years where more than fifty years of that period have expired, but

KENYA REGISTERED LAND ACT AND RULES

otherwise that subsection shall not apply to a restrictive agreement contained in a lease or charge.

This section provides a very necessary means of obtaining the discharge or modification of easements, profits, and restrictive agreements, and is modelled on LPA 84 (which enables an Official Arbitrator to discharge or modify restrictive covenants).

Saving of certain rights

99. Nothing in this Act shall be construed as altering any rule or principle of law which implies in the grant of an easement such ancillary rights as are necessary for effective enjoyment of the easement.

This section was intended by the Kenya Committee to repeat Sing 73(2), but was modified when the Act was passed. The section was omitted in Malawi, but came back as T & C 98, which repeats Sing 73(2) as follows:

“[T & C 981 Nothing in this Law shall be construed as derogating from the natural right to support, light, air or access to at highway appertaining to any land nor from such ancillary rights as are necessary for effective enjoyment of an easement."

Baalman comments at some length on this section, and says that "this restatement of the common law by s. 73(2) was probably necessary to resolve doubts which may have been engendered by the need for certainty in the description of parcels as required by s.39". (Sing 39 is the equivalent of s 18(4) in this Act.)

Licences

100. (1) Without prejudice to section 131 of this Act, a licence is not capable of registration.

(2) A licence relating to the use or enjoyment of land is ineffective against a bona fide purchaser for valuable consideration unless the licensee has protected his interest by lodging a caution under that section.

This section endeavours to deal with the difficult question of licences. Megarry and Wade (775) say that "the law relating to licences is full of difficulty, but until quite recently it could be said that it was not part of the law of real property; for a licence was merely a personal arrangement between two parties and did not create any proprietary interest which could bind a third party i.e. a successor in title to the licensor's land ... But even this fundamental distinction has been shaken by a number of recent decisions; ... a new chapter in the subject of real property may possibly be opening."

Section 100, following Sing 74(2), does not allow a licence to be registered as an interest in land, but enables a licensee to lodge a caution thus ensuring that any prospective purchaser has notice of the licence. Even if a caution is lodged the

KENYA REGISTERED LAND ACT AND RULES

licence will not necessarily be enforceable against a bona fide purchaser for value, but a licence will certainly be unenforceable if a caution is not lodged.

Division 6 – Co-proprietorship and Partition

Multiple ownership was discussed at length in Chapter 13. Rules of inheritance which provide a share for each dependant can produce, in the course of two or three generations, so many owners of shares shown with such huge denominators that registration becomes farcical and, so far from facilitating transfer, actually inhibits it by making it virtually impossible to get the agreement, let alone the signatures, of all the persons who have an interest. This Division now provides the legal machinery for preventing the registration of an excessive number of coowners, and also for preventing subdivision into parcels too small for economic development (i.e. 'fragmentation'). The members of the Kenya Working Party in 1957 were very alive to the dangers both of multiple ownership and of excessive subdivision. They worked out the procedure in this Division when they drafted KLR(SA)O 66-71, and this procedure has been carried forward unchanged into subsequent legislation in Kenya and elsewhere, but has proved very difficult to operate. Nobody likes being eliminated from his 'inheritance', however small it may be, and particularly in countries where to have no land is to have nothing. In any case, multiple ownership and fragmentation are basically economic problems and demand economic rather than legal solutions.

Registration of more than one proprietor

101. (1) An instrument made in favour of two or more persons, and the registration giving effect to it, shall show—

(a)whether such persons are joint proprietors or proprietors in common; and

(b)where they are proprietors in common, the share of each proprietor.

(2)Not more than one person may be registered as the proprietor of any parcel of which the Central Land Board has at any earlier time been registered as the proprietor.

(3)Subject to subsection (2) of this section the Minister may for any registration [with the consent of the county council (if any) concerned and of the Regional Assembly of the region in which the registration section is situated,] prescribe either—

(a)the maximum number (whether one or a greater number) of persons who are allowed to be registered in the same register as proprietors; or

(b)the maximum denominator of the vulgar fraction which expresses the share of any proprietor,

KENYA REGISTERED LAND ACT AND RULES

or both of them, and no dealing shall be registered if its effect would be that the number or that denominator, as the case may be, would be exceeded.

(4) Until the Minister otherwise prescribes under section (3) of this section, no dealing in respect of land in the special areas shall be registered which, if registered, would have the effect of vesting any parcel of land or a lease or charge in more than five proprietors.

Subsection (1) requires a disposition in favour two or more persons to specify whether they are 'joint owners' or 'owners in common'. (The characteristics of these two interests are set out in ss 102 and 101) The 1922-25 legislation in England abolished tenancy in common as a legal estate but it can exist in equity, and joint tenants on the register can in fact, be holding in trust for themselves as tenants in common (which is no very easy for a layman to understand). The Kenya Working Party had no doubt, however, that it was essential to provide for proprietorship in common, but in subsection (3) sought to limit the number of persons who could be registered as co-owners and also the size of the denominator of their shares.

Subsection (4) fixed the maximum number of proprietors at five, until the Minister should decide otherwise.

Subsections (1) and (3), with the omission of the words in square brackets, have been repeated as Mal 95(1) and (2) and T & C 100(1) and (2).

Characteristics of joint proprietorship and severance thereof

102. (1) Where the land, lease or charge is owned jointly, no proprietor is entitled to any separate share the land, and consequently—

(a)dispositions may be made only by the joint proprietors; and

(b)on the death of a joint proprietor, his interest shall vest in the surviving proprietor or the surviving proprietors jointly.

(2)For avoidance of doubt, it is hereby declared that—

(a)the sole proprietor of any land, lease or charge may transfer the same to himself and another person jointly; and

(b)a joint proprietor of any land, lease or charge may transfer his interest therein to all the other proprietors.

(3) Joint proprietors, not being trustees, may execute an instrument in the prescribed form signifying that they agree to sever the joint proprietorship, and the severance shall be completed by registration of the joint proprietors as proprietors in common and by filing the instrument.

This section sets out the characteristics of joint proprietorship and provides for its severance except, of course, where the joint proprietors are trustees. Although

KENYA REGISTERED LAND ACT AND RULES

as between themselves joint proprietors have separate rights, as against everyone else they are in the position of a single owner; together they form one person. The most distinctive feature of joint ownership is 'the, right of survival' (jus accrescendi or right of accrual). This is the right whereby on the death of one joint owner his interest in the land passes to the other joint owners, and this process continues until there is only one survivor who then holds as the sole owner. This right of survivorship is really only appropriate in the case of trustees, and persons used only to customary law naturally regard it as a very strange provision.

Characteristics of proprietorship in common

103. (1) Where any land, lease or charge is owned in common, each proprietor shall be entitled to an undivided share in the whole, and on the death of a proprietor his share shall be administered as part of his estate.

(2) No proprietor in common shall deal with his undivided share in favour of any person other than another proprietor in common of the same land, except with the consent in writing of the remaining proprietor or proprietors of the land, but such consent shall not be unreasonably withheld.

Subsection (1) sets out the characteristics of proprietorship in common and was derived from KLR(SA)O where, like the previous section, it was an original provision.

Subsection (2) emphasizes the partnership nature of this co-ownership since it enables other co-owners to prevent the intrusion into the 'partnership' of anybody they do not like.

Partition.

104. (1) An application in the prescribed form to the Registrar for the partition of the land owned in common may be made by—

(a)any one or more of the proprietors; or

(b)any person in whose favour an order has been made for the sale of an undivided share in the land in execution of a decree,

and, subject to the provisions of this Act and of any written law by which minimum areas or frontages are prescribed or the consent of any authority to a partition is required, the Registrar shall effect the partition of the land in accordance with any agreement of the proprietors in common or, in the absence of agreement, in such manner as the Registrar may determine.

(2) Partition shall be completed by closing the register of the parcel partitioned and opening registers in respect of the new parcels created by the partition and filing the agreement or determination.

KENYA REGISTERED LAND ACT AND RULES

This section and the next two sections, which relate to procedure on partition, repeat provisions of the KLR(SA)O which were based largely on ss 125-9 of the Sudan Civil Justice Ordinance 1929. KLR(SA)O 69(1) included a provision enabling a District Commissioner also to apply for partition as it was feared that there might be cases in which proprietorship in common was holding up development and none of the co-proprietors would apply for partition. This provision was dropped in Lag 109(2) and has not been reinserted, the Kenya Committee remarking that "laws to ensure development should be dealt with outside the context of registration, and there are other enactments in Kenya which are probably sufficient for this purpose".

When Registrar may order sale

105. (1) Where for any reason the land sought to be partitioned is incapable of partition or the partition would adversely affect the proper use of the land, and a demand is made by the applicant or one or more of the other proprietors in common that the land or any share or shares in the land be sold, the Registrar shall, in default of any agreement between the proprietors in common, value the land and the shares of the proprietors in common and order the sale of the land or the separation and sale of such shares by public auction or make such other order for the disposal of the application as he thinks fit.

(2) A proprietor in common shall be entitled to purchase the land or any share so offered for sale, either at the auction or at any time by private treaty.

This section enables the Registrar to order a sale Where the land is incapable of partition (e.g. because partition would result in parcels below the economic level).

Subsection (2) enables a co-proprietor to bid at the sale, or he may buy in by Private treaty before the auction. This provides a convenient process for one member of a family to buy out the others.

Procedure where share small

106. (1) Where the land sought to be partitioned is capable of partition generally, but the resultant share of any particular proprietor in common would be less in area than any minimum prescribed by or under any written law, the Registrar shall add such share to the share of any other proprietor or distribute such share amongst two or more other proprietors in such manner and in such proportions as, in default of agreement, he thinks fit.

(2) Where the Registrar proceeds in accordance with subsection (1) of this section, he shall assess the value of the share added or distributed and shall order that there be paid to the proprietor of the share by each proprietor who has received an addition to his share the value of such addition.

KENYA REGISTERED LAND ACT AND RULES

(3) Where any sum is payable under subsection (2) of this section by any proprietor in common to any other proprietor in common, the Registrar may order that such sum be secured by way of charge on the share of the person liable to pay it.

This section provides a convenient and practicable procedure for dealing with a parcel of land large enough to be partitioned but not into such small parcels as would satisfy all the co-proprietors. It amounts virtually to a repooling scheme with those who receive more than their entitlement paying compensation to those who receive less or perhaps nothing at all. The sums so payable may be secured by a charge and, of course, may then be recovered in the same way as money secured by an ordinary charge.

Division 6A - Groups

Groups

106A. Where the proprietor of land or the person entitled to an interest in land not amounting to ownership is group representatives—

(a)the Registrar shall add to or delete the names of group representatives in accordance with the directions of the Registrar of Group Representatives; and

(b)the persons whose names are for the time being registered as the group representatives shall, for the purpose of any registered dealings, be deemed to be the absolute proprietors of the land, but without prejudice to their duties under section 8 of the Land (Group Representatives) Act 1968.

Division 6A (comprising s106A only) was inserted in 1968, but is clearly out of place in that it is in no way a 'Disposition'. Group (or family) representation will be considered in Part VII below.

Division 7 - Succession on Death

Succession on death

107. Subject to Part VII of this Act, nothing in this Act affects the law of testate or intestate succession.

Disposition is, by definition (e.g. in T & C 2), confined to acts inter vivos, and in any case it would be inappropriate to make express provisions for succession in this Act which relates to land only, since such provisions should also cover movables. Nevertheless, since it is claimed that the Act makes provision for all the requirements of a landowner in connection with his land dealings, it is advisable to make it clear that the point has not been overlooked but that this Act does not affect the existing law either as to the right to make a will or in the event of intestacy.

KENYA REGISTERED LAND ACT AND RULES

[PART VA - STRATA TITLES]

No provision was made for 'strata titles' in the Kenya Registered Land Act 1963, nor in the Turks and Caicos Registered Land Law 1967, but in Chapter 14 we suggested "that it can be accepted without further discussion that it is imperative to enact legislation wherever there 'multiple-storey building", and we promised to include a version that had been prepared for the Registered Land Acts of the Eastern Caribbean. We briefly described its salient features.25 It fits into the legislation at this point, and we therefore now include it without further comment.

[Division 1 - Interpretation

[107A. In this Part of this Act unless the context otherwise requires— ["building" means the building or buildings shown in a strata plan;

["common property" means in relation to any strata plan so much of the land to which such plan relates as is for the time being not included in any strata lot contained in such plan;

["strata lot" means a horizontal subdivision of a parcel which is shown on a filed strata plan as a strata lot;

["strata lot corporation" means the body incorporated in respect of a parcel under section 107D;

["strata plan" means the plan referred to in section 107B;

["unanimous resolution" means a resolution unanimously passed at a duly convened meeting of a strata lot corporation at which all persons entitled to exercise the power of voting conferred by or under this Act are present either in person or by proxy at the time of the motion;

["unit entitlement" means the number allocated to a strata lot in accordance with section 107B(2)(d).

[Division 2 - Strata Lots

[Creation of strata lots

[107B. (1) Subject to the provisions of this Act and of any other written law, the proprietor of a parcel upon which a building comprising more than one storey has been or is to be constructed may apply to the Registrar on the prescribed form for the registration of horizontal subdivisions, to be known as strata lots, in accordance with a plan, to be known as a strata plan, which shall accompany the application.

[(2) Every strata plan shall—

[(a) state the full reference of the parcel and be described as a strata plan;

[(b) delineate the boundaries of the parcel and the location of the building in relation thereto;

25 See 14.5