Law of Property notes

Law of Property

  • Meaning of property law
  • Nature of property
  • Classification of property
  • Ownership and possession
  • Easements
  • Nature of mortgages and Charges


Introduction

Property refers to which belongs to a person .It may tangible or intangible.

NATURE AND CLASSIFICTION OF PROPERTY

KINDS OF PROPERTY

  1. Real property; this refers to immovable property and rights derive from such property e.g. land buildings minerals trees etc. They are also known as corporeal hereditaments. Rights derived from theses properties are called incorporeal hereditaments.
  2. Personal property; these are properties other than real properties. They include chattels or movable property such as furniture, books etc. They are can also called personality chattel

 

  1. Chose in possession; It is a tangible thing in physical possession. It consists of real and personal property.

 

  1. Chose in action; It is intangible right which is incapable of physical possession e.g. debt, copy right trade marks, stock etc

Ownership

Ownership is a legal concept. The owner of property is entitled to all rights over it. Such rights like to sell. Ownership can be acquired in the following ways;

  1. By asserting an original claim; This is to own property which have never been owned by anyone else e .g. virgin land in the forest.
  2. By derivative means; This owns land which has been abandoned by the original owner. This may be done involuntarily by the order of the court or voluntarily by selling it.
  3. By succession– this is where a person inherits property
  4. By possession– a person is to said possess property if he has control over it. person is said to be in possession   with owners consent. Possession is an evidence of ownership.

CO-OWNERSHIP

This is where land is land is held by mor than one person. There are two forms of co-ownership;

  1. Joint Tenancy

This is where two or more people own land. Its main features are;

  1. Doctrine of survivorship

It helps to determine the rights of joint tenants to the property jointly owned by them in the event of death of one of them..When a join tenant dies the property is passed to other joint tenant, until no remains with one person.

  1. The four unities

Unity of interest-it is the extent of which of joint tenant hold property e.g. leasehold, freehold.

Unity of time-joint tenancy must arise at same time.

Unity of title-The interest of each joint tenant must been created by the same act or document.

                    

  1. Ownership in common

Each tenant has a fixed share of property divided into shares .there is no survivorship. Tenant share is not affected by death are transferred to dependants or personal representative. Tenants are free to dispose shares in any manner .unity of posses session must be present

Termination of ownership

  1. Portioning- A co- tenancy can be terminated by voluntary partitioning of the property. Each co-owner becomes a sole tenant of the piece allocated to him.
  2. Sale- The co-owners sell the property and share the proceeds
  3. Union sole tenant- This is where the tenancy is vested to one person upon death of other co-owners.
  4. Severance-The tenants divide the tenancy into distinct shares.

LEGAL NATURE OF LAND

It is the area of the earth comprising of acres of land. It is everything on land below and Growing and above it. Kenya land law is very long and complicated It is based on common law of England and customary law of Kenya.                                                                                                                                                                                                                         Purpose of land law

  1. Minimize friction in the society by granting ownership to particular persons.
  2. Creates various interest and estate
  3. Make transfer of property.

EASELHOLD AND FREEHOLD

These are types of estate. Estate is the tenant interest and tenure .tenure is the duration of the interest Freehold estate is one whose duration is fixed but uncertain

Types of estate;

Freehold;- is the one whose duration is fixed and uncertain

Classifications Estate

  1. Fee simple

Is the greatest estate in land which may be held. It continues so long as the tenant is alive and heirs survive if the duration is fixed to the life of tenant and heirs, but uncertain because no one knows how long the tenant will continue to have heirs

  1. Fee tail interest

This gives a person only life interest followed by successive interest of the descendants. A person may make a grant in fee simple on his death. The land will devolve on his linear descendants only. If they will be no linear descendants the estate will be reverted to the guarantor or his successors

  1. Life interest

The estate lasts for the life of grantee only .It reverts to the guarantor on the death      of grantee

  1. Estate” Per Outré vie”

In this case the estate lasts for the life of another person e.g. A given an estate for the life of B,B dies before a, then the estate reverts to the grantor

Leasehold; –A lease is an interest which confers a right to exclusive possession of land for a defined period definition or incapable definition. Lease also refers to a document creating interest for a number of years. A person who acquires right exclusive to possession of land is called lessee and a person whom the lessee acquires interest from is called the lesser Lease enables the lessee to acquire the right of possession of land to the exclusive to the lesser. The lesser remains as a reversion.

The term of lease must be a definite period .It has a beginning an end otherwise is void .Lease is created for a number of years thus described in number of years or months. L ease is both real and personal property.

TENANCIES

A tenancy is letting of premises for a short duration. It is also described as an agreement between the landlord and tenant. The landlord maintains the title of the property.

Types of tenancies

  1. Lease for a fixed period
    1. Is a lease of a fixed period of 99 years.
    2. Created by express agreement
  • Termination of lease must be certain or uncertain.
  1. Periodic tenancy

It is a defined tenancy from year to year, half yearly monthly, weekly.  etc. It continues   from period to another. It may be created by expressly or implied is implied if rent is paid in reference in a given period. When rent is paid after expiration of time is accepted the tenancy remains.   Periodic tenancy is terminated by notice depending on the agreement of parties.

  1. Tenancy at will
  2. Tenancy at sufferance this tenancy arises when a person occupies land as a tenant with landlords consent on the understanding that tenancy may be terminated at any time. It may be converted into periodic tenancy by the manner in which rent is paid is terminated by notice or any occurrence.
  3. Tenancy at sufferance

This tenancy arises where a tenant having entered upon land under a valid tenancy holds over without the landlords consent

 

Covenant of landlord and tenant

Landlord duties

  1. Ensure the tenant enjoys quiet enjoyment of land. This means complete freedom to enjoy property without disturbance from the landlord                                                                                                           t he land lord must not allow or use any adjourning land.
  2. The property must be fit for habitation
  3. Repair the main walls ,common installations and externals
  4. Disclose any defect of any material defect in property which is within his knowledge

 

Tenant Duties Tenant duties

  1. Pay rent on time
  2. Pay taxes, rates which the landlord is liable
  3. Repair the internal areas and restore the property n a good condition asit was on commencement of lease
  4. Must not deliberate damage the leased property or permit to depreciate
  5. Must not transfer, charge, or sublet part of the leased property without permission from landlord
  6. Must permit the landlord or his agent to enter on premises and examine the conditions

of lease

 Termination of lease

  1. By notice

Notice may be given by both parties even if no provision in the agreement

  1. Expiration of time

This when the period or certain event has occurred

  1. Forfeiture

The lesser has a right to forfeit of lease if lessee breaks any express condition or when declared bankrupt

  1. Frustration

A lease may be frustrated if any materials destroyed and becomes permanently unfit for the purpose of lease

  1. Merge

Merger is where a lease becomes a greater estate

  1. Surrender

The lease gives back the possession to the lesser or may express or implied

Legal interest on land

The Paw of property Act lays down the following legal interest in land;

  1. Easement and profits a pendre; easements are bare right for a person to use the land of another for a certain purpose without to take anything from the land e .g. right to walk over the land, right of light.
  2. Profits; are the rights to take something from the land of another e.g. to pasture cattle on another’s land.
  3. Rent charges; a rent charge is rent payable by a tenant to some other person other than the landlord. It is form of mortgage upon land e.g. a tenant may charge his land some amount of money payable to the mother until she dies. In this case the mother has a legal interest on land.
  4. Land tax is a charge on land created by an instrument.
  5. Right of entry; it is exercisable over in respect of a legal charge

Easement

Definition; Is a right which one has over the land of another created by law and has some characteristics required by law Easement includes a right of way. Water, light etc .the owner of easement does not possessory right in the land

Distinguishing easement and other rights

  1. Easement and profits; Profit is bright to enter into another’s land and take something capable of ownership but easement is right over another’s land
  2. Easement and licenses; License is a permission to enter into land for an agreed personal but Easement is not a personal right
  3. Easement and local customary rights; Local customary rights exist where an indefinite class of persons are entitled to exercise certain rights overland but easement is a grant non permanent person enjoy easement

 

Characteristics of easement

  • There must be a dominant and serviettes owner. Easement must be attached to land ,there must be two separate pieces as of land .the land the benefit the easement exists is called dominant tenement and the one is called dominant owner’
  • Must accommodate the dominant tenement. An easement must be connected to enjoyment of dominant tenement

 

  • Dominant and serviette owner must be different person. The owner of the two lands must enjoy the easement
  • Rights must be capable of forming the subject matter
  • Easement must originate from in a grant it must be capable of exact description precise and certain

 

Creation of easement

  1. By statute
  2. Certain easement are created by statute and these can be found on local acts
  • By express grant
  1. At common law benefit of grant passes with transfer of land
  2. Implied grant
  3. This where the owner of the land is accustomed to using part of it in a particular manner
  • Presumed grant
  • This is long enjoyment of a certain benefit .that is grant continues and leads to presumed grant

 

8.1.           Review questions

  • Explain the methods of acquiring property (8marks)
  • Explain the types of leases how they are created                                                          (10marks)
  • Differentiate between possession and ownership (4marks)
  • Discuss the duties of the landlord and tenant                                                    (20marks)
  • In relation to the law of property ,explain five ways in which lease may be terminated                                                                                                                         (10marks)

 

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