The Law of Property
The Law of Property
The Law of Property
OBJECTIVE
To provide the candidate with a broad understanding of the
following concepts relating to
the Law of Property:
Definition of property (Real and personal property: movable and
immovable property:
intellectual and intangible property, trademarks, copyrights and
patents)
Ownership of property.
Freehold and leasehold interest.
Leases.
Mortgages and charges.
Foreclosure.
Rights and restrictions on anothers property.
KEY TERMS
Freehold estates confer a bundle of rights exercisable for an indefinite
duration
Leasehold estates held for a specified duration of time.
Tenant an individual who rents land from the owner for his own use.
Land - Those parts of the surface of the earth that are capable in law of
being owned and are within the courts jurisdiction. Ownership of land
includes the airspace above it and the subsoil below, including mines and
minerals (whether or not owned separately from the surface), buildings,
and most interests in land. Chattels fied to the land so that they become
part of it are also treated in
law as land, under the maxim quicquid plantatur solo, solo cedit.
Landlord the owner of property who rents it out to another for a fee.
Charge - an interest in land as a security for the payment of money/
monies or the fulfiment of any condition.
Mortgage - a mortgage is a conveyance of land or assignment of
chattels as security for payment of a debt or the discharge of some other
obligation for which it is given
Intangible property - Property that has no physical existence: choses
in action and incorporeal hereditaments.
Intellectual property - Intangible property that includes patents,
trade marks, copyright, and registered and unregistered design rights.
Copyright - The exclusive right to reproduce or authorize others to
reproduce artistic, dramatic, literary, or musical works.
Trade marks - A distinctive symbol that identifis particular products of
a trader to the general public. The symbol may consist of a device,
words, or a combination of these.
Patent - The grant of an exclusive right to exploit an invention.
13.1 THE LAW OF PROPERTY.
Property law is concerned with the bundle of rights a person
may have on land. Such rights may be exclusive or otherwise.
Property law defies the range of functions a person may
exercise in a given situation at a given time. It confers
proprietary rights and imposes obligations on owners/holders of
land.
Land includes physical strata, water all things growing on it,
buildings or other things permanently annexed on the land.
Common law conception of land is based on the maxim cujus
est solum which literally means that land encompasses
more than just the soil. It includes all things found in the
aerospace above
and the geospace below. Land includes all the
permanent fitures. The common law conception of fiture
is expressed by the maxim Quic Quid plantatur solo solo
codit which literally means
At common law, fixtures were deemed to be part of the land
and could not be removed. However,
this principle was modified and certain categories of fixtures
could be removed e.g.
Trade fixtures to enable a tenant carry out his trade
Ornamental and domestic features if they did not cause
substantial damage to land
Agricultural fixtures could be removed from 1948
The common law principles of applies in Kenyas property law,
however it has been modified by
statute law e.g. The Water Act,1 The Mining Act, The Way
leaves Act2 and The Agriculture Act.
13.2 POSSESSION AND OWNERSHIP
THE LAND IN QUESTION IS OWNED BY ONE PERSON WHO EXERCISES ALL THE RIGHTS IN RELATION TO IT
JOINT OWNERSHIP
A situation where property is owned by two or more persons. It enjoys all
the characteristics
of a single owner. Proprietors have no individual shares in the property.
Joint ownership is
characterized by four unities namely:
Unity of title
All the persons derive title from the same title
Unity of possession
All the persons are entitled to each and every part of the land. They have
the same
rights to use any part of the land.
Unity of interest
All the owners own a similar interest in nature, extend and duration
Unity of time
The interest of the owners commences at the same time
Jus Accresscendi / Right of ownership
Means that when a proprietor or owner dies, his
interest vests in the survivors. In a joint ownership,
interest in the property cannot be disposed off by will
or by intestacy. At common law, if joint
owners die together, the younger is deemed to have
survived the older
COMMON OWNERSHIP
7. Judicial Discharge
Under Section 98 of the Registered Land Act, the
court is empowered on application
by an interested party to order termination of an
easement if satisfid that there is
reasonable cause to do so.
13.5 PROFIT APPRENDRE
The right to take something off anothers land.
It is the right to go on the land of another to take particular
substance from that land, whether the
soil or products of the soil. A profi enables the grantee to take
something capable of ownership
from grantors land.
If a profi is enjoyed by others, it is referred to as profi in
common/common. If it is enjoyed to
the exclusion of others it is a several profi. If a profi is
attached to the land, it is said to be a
profi apportionment.
A profi may be created or
acquired by:
1. Express grant
2. Prescription by law
May be terminated by:
1. Release/Abandonment
2. Unity of Seisin
13.6 RESTRICTIVE COVENANT
5. Anomalous Mortgage
Created by Section 98 of the ITPA. The rights of the parties and other
terms and
conditions of the transaction are determined by the mortgaged
instrument.
6. Equitable Mortgage
Created by the Equitable Mortgages Act CAP 291. The borrower
DUTIES OF MORTGAGORS AND CHARGORS
1. Injunctions
2. Damages
3. Account of profits
4. Delivery up an order that requires
the defendant to deliver up all
infringing material
including all equipment and
contraptions
CRIMINAL SANCTIONS
They are available under the Intellectual Property Act and
the Trade Marks Act. They may take
the form of fies, imprisonment and forfeiture (delivery-up)
Section 109 of the Industrial Property Act declares
infringement of patents to be criminal and one
would be liable to a fie of between Kshs. 10,000 and 50,000
or a jail term of between 3 and 5
years or both.
FUNDAMENTAL WEAKNESSES IN THE ENFORCEMENT OF
CRIMINAL SANCTIONS