Interests in Land Part A

Elements of Land Law

Lecture 5
Elizabeth Mulwa
OBJECTIVES

 In this class we shall examine the following:

1. Definition of Interests in Land
2. Main types of interests in land
3. Other interests in land- Minor interests and overriding interests
INTRODUCTION

 An interest in land is a right (or a “bundle” of rights) that someone has in, against, under or over – or with
respect to – a parcel of land. If the person holding the interest in land is the current owner of the land itself,
then the “interest” means “simply” ownership of that land. There are many interests in land which do not rise
to the level of “ownership”, but which give meaningful – and often valuable – rights or entitlements to the
holder thereof.
 Interest in land can be either legal or beneficial.
 'Legal interest' refers to formal ownership of an interest in or right over land.
 'Beneficial interest' refers to the right to receive benefits resulting from the land (e.g., sale proceeds or rental
income). A beneficial interest can be held and transferred separately from the legal interest in land. It is
important to confirm whether the interests are held legally or beneficially.
FREEHOLD INTEREST

 Black's Law Dictionary defines 'freehold interest' as an estate in land held in fee simple, fee tail or for term
of life. The word 'fee' means an estate of inheritance. It is an estate, which on the death of the owner, can
descend to the heirs and the estate may continue forever.
 A fee simple generally descends to the heir and even to collaterals, while a fee tail descends only to lineal
descendants and was originally designed to keep land in the family. On the other hand, an estate for a term of
life is not an interest of inheritance and cannot continue forever.
FREEHOLD CONT

 Free hold interest represents the greatest interest an individual can have on land since it gives the holder or
purchaser of the land absolute ownership of the land for life. This means that the buyers descendants and
next of kin's can inherit or succeed the owner of the land for a long as the family lineage continues.
 A freehold title deed has no restrictions as to the use or occupation for the land. However, there exists some
that have conditional freeholds title deeds, which can restrict the individual in the usage of the land, such as
for agricultural land or ranching only
LEASEHOLD INTEREST

 Unlike freehold interest, leasehold interest is granted for a fixed term. The terms can be 50 years, 99 years,
999 years or a period otherwise stated in the title document. Various types of leasehold interest exist.
 However, the common thread that runs through the terms is that a leasehold interest in land is an interest for
exclusive possession and profit of land for a fixed period and usually in consideration of payment or rent
(often nominal and referred to as a 'peppercorn rent'). It is a contract for the grant of time in land.
 When purchasing such properties, it is important to consider the term of the lease and the various conditions
under which a proprietor holds it.
LEASEHOLDS CONT

 On expiry of a leasehold term, the property reverts to the government. Proprietors of leasehold titles should
ensure that they adhere to the conditions under which the land is held and apply for renewal.
 The process of application for renewal should commence at least two to three years before the term expires.
  For this one the interest in the land is for a specific period subject to the payment of a fee or rent to the
grantor. For this type, payment for rates is effected towards the respective local authority for services
rendered. The leases are granted by the existing government on the public land, local authority for trust, and
individuals with the freeholds.
 For such lands, the government maximum term for the lease is 999 years for agricultural land and 99 years
for urban plots. Also, it is common to get a 33 year lease in respect to the urban trust land.
OTHER INTERESTS

 Minor interests, or registrable interests, refer to those rights which can be applied to land, yet are secondary
to the registered estate.
 Overriding interests -They are interests that are not protected on the land register but which nevertheless
bind any person who acquires an interest in registered land, either on first registration or where there has
been a registrable disposition of a registered estate that has been completed by registration. 
MINOR INTERESTS

 They include the following:

1. Easements
2. Co-ownership
3. Profits a pendere
4. Licences
5. Restrictive covenants
6. Adverse possession
7. Compulsory acquisition
8. Leases
9. Mortgages and Charges
EASEMENTS

 An easement is a right amounting to an interest in land allowing one owner of a given piece of land to
use or restrict the use of other piece of land owned by another person in some specific way but excludes
the former owner taking away the soil or produce or any other commodity independently capable of
ownership as is the case concerning the right of profit.
 The owner of the other land accepts the holder of the easements to enjoy the rights by allowing such
enjoyment by omitting to do some defying acts or by allowing some defined acts to be effected in his land.
 An easement can be either positive or negative. Positive easement includes the right to hang clothes on a line
passing over another’s land, a right of way, a right to place sign boards and advertisements on another’s land,
right to run telephone line over neighboring land and a right to use lavatory on another’s land.
 Negative easements include easements of support of lights and of air.
EASEMENTS CONT

 For there to be an easement, the following things must exist:

 i. There must be two pieces of land and two different owners.
 ii. The grantor and grantee must have legal right to create an easement.
 iii. The right must be specific
 iv. The right must be capable of creating a grant
 The two pieces of land are known as the dominant tenement and the serviette tenement. The former is a piece of land to
which the benefit of the easements accrues and the latter is the piece of land which bears the burden.
 Where the pieces of land are not adjoining, they must not be remotely distant from each other.
 An easement can be acquired by statute; by deed; or prescription.
 Since an easement is a right, it can be acquired by agreement of parties. Such a grant will need to be registered. There can
also be an implied easement.
EASEMENTS CONT

 S139 LA Entry Order: owner of dominant land may seek entry order from court to enable him to enter the servient land for purposes of doing
anything on the dominant land. Under the Public Roads Access Act (cap299) a land owner may apply to have a road of access over another person’s
property to a public road or railway line. S 140 LA- access order. Owner of landlocked land may apply for access order (analogous rights) .
 Easements and analogous rights are to be enjoyed by owner of dominant land and any successors in title including lessee of dominant land, chargee
etc.
 CREATION AND CANCELLATION OF EASEMENTS
 S 98 LRA- creation of statutory easement either in the prescribed form or by grant or reservation in the instrument of transfer or lease. The easement
should contain full particulars of
1. Nature of easement, conditions, limitations or restrictions subject to which it is granted
2. Period of time for which it is granted
3. Land or part burdened
4. Land to benefit from easement
5. A plan sufficiently defining the easement should accompany it.
 S98 (7) LRA- No easement by presumption of a grant from long uninterrupted use. Cancellation S99 LRA- by owner of dominant land, servient
land (if registrar is satisfied that the period of easement has expired or it
CO-OWNERSHIP

 If two or more people own land or property they are co-owners. Where there is co-ownership of land, each legal owner
simultaneously enjoys the rights and responsibilities of property ownership.
 There are two types of co-ownership; joint tenancy and tenancy in common.
 Joint tenancy
 A gift of land to two or more persons in joint tenancy is such a gift as imparts to them with respect to all other persons than
themselves the properties of one single owner. Joint tenants have separate rights as between themselves but against everyone else
they’re in a position of a single owner. Basically under a joint tenancy, the co-owners each own the whole estate. 
 The nature of joint tenancy have two features; the right of survivorship and the four unities.
 a. THE RIGHTS OF SUVIVORSHIP.
 This is the distinguishing feature of a joint tenancy. On the death of one joint tenant, interest in the land passes to the other joint
tenant by right of survivorship. This process continues until there’s one survivor who then owns the land as a sole owner.
 A joint tenancy cannot pass under the will of intestacy of a joint tenant. In each case, the right of survivorship takes residence. It is
therefore said that each joint tenant holds nothing by himself and yet holds the whole together with the other. Whether he takes
everything or nothing depends upon whether or not he is the last joint tenant to die.
JOINT TENANCY

 The right of survivorship means that under a joint tenancy, no co-owner (‘joint tenant’) can dispose of their interest
in the land under their will when they die, because they do not have a divisible share. When a joint tenant dies, the
survivor/s automatically inherit the whole of the property. Likewise, one joint tenant cannot sell a ‘half share’ in the
property as they do not own a divisible share to sell. If the property is sold, the co-owners are entitled to an equal
share of the sale proceeds – regardless of how much money they have actually put into the property.
 At common law, if there would be no right of survivorship, there could be no joint tenancy. A corporation could not
therefore be a joint tenant because it could never die. A joint tenant has full powers of alienation inter vivos
although if for example he conveys his interest, he destroys the joint tenancy by severance/sufferance and turns his
interest into a tenancy in common. He must however act in his lifetime for a joint tenancy cannot be severed by will.
b. Four unities must be present.
These four tenancies are the:
I. unities of possession; II. Interest; III. Title; IV. time
JOINT TENANCY

UNITY OF POSSESION
 This is a common feature of all forms of co-ownership. At common law each co-owner is as much entitled to possession of any part of the land as
others. He cannot point to any part of the land as his own to the exclusion of others. If this is possible then it is separate ownership and not co-
ownership.
Unity of interest
 The interest of each joint tenant is the same to the extent, nature and duration because in law, they’re whole one estate. Unity of interest only applies to
the estate which is held jointly but if that requirement is satisfied, it does not then matter if one joint tenant has a further and separate interest in the
same property.
 Example: for instance, a conveyance to A and B as joint tenants for life, remainder to B in fee simple would make A and B joint tenants for life
despite the remainder to B.
Unity of title
 Each joint tenant must claim his title to the land under the same act or document.
Unity of time
 The interest of each tenant must vest at the same time.
TENANCY IN COMMON

 TENANCY IN COMMON
 Unlike joint tenancy, tenants in common hold land in undivided shares. Each tenant in common has a distinct
share in property which has not yet been divided among the co-tenants. Tenants in common therefore have
separate interests. The only thing which brings them together into co-ownership is that they both have shares in a
single property which has not yet been divided among them. None of them can say for certain the particular parcel
of land they own.
 The size of each tenant’s share is fixed once and for all and is not affected by the death of one of his co-
owners. Upon a co-owners death, his interest passes under his will or intestacy for his undivided share is his to
dispose as he wishes.
 The only unity that is essential is the unity of possession although all 4 unities of a joint tenancy maybe present. For
instance, the unity of interest may be absent and the tenants may hold unequal interests so that one tenant maybe
entitled to say, one 1/5 share and the other 4/5 share or one may be entitled for life and another in fee simple.
TENANCY IN COMMON

 Section 91 of the LRA envisages the ownership of land by two or more persons in undivided shares,
including instances of joint tenancy and tenancy in common.
 Section 91 (8) of the LRA contains a limitation to the effect that except with leave of a court, the only joint
tenancy capable of being created shall be between spouses, and any joint tenancy other than that between
spouses that is purported to be created without the leave of a court shall take effect as a tenancy in common.
 Each co-tenant of land is entitled to receive a copy of the certificate of title of that land. On application by a
co-tenant in the prescribed form, the Registrar shall issue a copy of the certificate of ownership to a cotenant,
with an endorsement signed by the Registrar that the copy has been issued to the co-tenant named in the
endorsement.
NEXT WEEK

 INTERESTS IN LAND CONTINUED PART B