Conveyancing Group 22 - Goood PDF

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LAW OF PROPERTY IN LAND II LPL 208 GROUP WORK - SERVITUDES

NAME

REGISTRATION NUMBER

ALEX TOTO TAIT

L95S/15618/2014

OWINO AKUKU N

L95S/14410/2015

ELIZABETH PENDO ERICK

L95S/15771/2015

STEPHANIE KEYA K

L95S/15504/2015

ROBERT KELVIN

L95S/14257/2015

MAGATI JOSIAH

L95S/14121/2015

ROSEMARY KIMANI

L95S/7015/2009

RONALD OGUTU

L95S/15127/2015

ABRAHAM SANG

L95/1606/2014

GEORGE MUNYAO

L95S/9688/2010

NAMASAKA WEKESA

L95S/16494/2015

NANCY MUGAMBI

L95S/7022/2009

OLIVER MABEYA

L95S/14255/2015

BRIAN CHEGE

L95S/14069/2015

SIGN

SERVITUDES What is a servitude? •

A servitude is a registered right that a person has over the immovable property of another. It allows the holder of the servitude to do something with the other person’s property, which may infringe upon the rights of the owner of that property. An example is the right of way to travel over a section of the other person’s property in order to reach your own property.1

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A servitude is a qualified beneficial interest severed or fragmented from the ownership of an inferior property (servient estate) and attached to a superior property (dominant estate) or to some person (personal beneficiary) other than the owner.2

A servitude can briefly be defined as, “The state of a person who is subjected, voluntarily or involuntarily, to another person as a servant. A charge or burden resting upon one estate for the benefit or advantage of another.”2 HISTORY OF SERVITUDES Much of servitude law originated in the mid-nineteenth century in England and the United States as a contract-based means to circumvent onerous property-based conveyancing rules. 3 Property law recognizes three types of real servitudes: 1. easements, 2. restrictive covenants, and 3. Equitable servitudes. Each of these types of obligations can pass from the owner of an estate to subsequent purchasers, a concept known as "running with the land.4 The first of these servitudes recognized in common law was the easement, which traces its origins back to Roman law.5 According to customary land law, when someone wanted to sell his land, he must offer the right of first refusal to his nearest relatives, then other members of his clan before he could offer it to outsiders. Sales of inherited land can be seen as a breach of an informal trust and that selling to an outsider might upset the clan and the village community. Frauds and collusion were often checked by the village. The sale of the land among members of the clan was often conducted through an oral agreement, while 1 https://www.privateproperty.co.za/advice/property/articles/what-isservitude/3715 2 R.C. Elliott, The South African Notary, 6th edn. (Cape Town: Juta, 1987), 168. 2 https://law.jrank.org/pages/10172/Servitude.html 3 James L. Winokur, The Mixed Blessings of Promissory Servitudes: Toward Optimizing Economic Utility, Individual Liberty, and Personal Identity, 1989 Wis. L. Rev. 34-39. 4 Charles E. Clark, Real Covenants And Other Interests Which "Run With Land" 2-3 (2d ed. 1947); 5 Uriel Reichman, Toward a Unified Concept of Servitudes, 55 S. Cal. LRev. 1177, 1185 n.36 (1982).14.

selling to outsiders required a written deed. The deed often stated that immediate family members had been offered the land but had been unable to take up the offer. The deeds also show that the reason for the sale was either starvation or extreme poverty. In a bid to protect the informal trust on the land, servitudes were created to restrict certain land uses which were not acceptable to the larger community. Over time they have grown to serve many other purposes. There are two main types of servitudes: 1. Praedial servitude- which is when a person has a right of use due to the fact that he is the owner of a certain property. Should he sell the property the servitude can be exercised by/will have to be honored by the new owner? 2. Personal servitude- is a right in favor of a specific individual. This means that when that individual moves on, the servitude falls away. It does not pass on to the new owner if the property is sold.6 Praedial Servitude A praedial servitude is a limited real right constituted in favour of the owner of a property in his capacity as owner. It entitles one property owner to exercise a right on the property of another, or to prohibit another property owner from exercising a normal ownership right. However, there must be at least two properties involved in the servitude to be a praedial servitude. Examples of such a servitude are a right of way or a servitude that restricts the erecting of a building above a certain height that may obscure the view of the holder of the servitude. Praedial servitudes can either be granted for a short-term period or they could last indefinitely. Personal Servitude A personal servitude is a limited real right constituted in favour of the holder in his personal capacity to exercise a right on the property of another person, or to prohibit the property owner from exercising a normal ownership right. How this servitude differs from praedial servitudes is that two properties do not have to involve as the holder is entitled to the rights in his personal capacity. Examples of personal servitudes are usufruct, usus and habitatio. 1. Usufruct Definition: Usufruct is the right to enjoy the property of another and to draw from that property all the profit, utility and advantage which it may produce. The usufruct holder may dispose of the right to use and enjoy the property and its fruits to another party (for the duration of the 6 https://www.privateproperty.co.za/advice/property/articles/what-is-servitude/3715

usufruct), by sale, lease or loan and is entitled to all production of the land and all profits and revenues derived from the property. The property may only be used in the manner in which it was intended, unless a new manner of exploitation would be considered sensible under the specific circumstances. 2. Usus The holder of a right to usus is restricted to the use of the property by the holder him or herself. The fruits of the property may only be taken for the holder and his or her family’s daily needs. The fruits may therefore not be sold nor may the property leased out by the beneficiary, exceptions occur under specific circumstances. 3. Habitatio The right to habitatio is applicable to a dwelling. The holder has the right to dwell in a house with his or her family and may lease or sublease the property. A diagram needs to be submitted to the Deeds Office when a right to habitatio is registered excepting in the case of a sectional title unit in which case the registered sectional plan will suffice. Personal servitudes cannot be granted indefinitely and so are usually linked to a period or the lifetime of the holder of the right. Personal servitudes in favour of a legal person, such as a company, terminate after a 100 year period. Note carefully; both praedial and personal servitudes are usually created in a contract between the parties. However, in order for them to be effective against third parties registration of the servitude against the title deed of the property is required. This can be done by executing a notarial deed which is then lodged at the Deeds Office and the servitude is then endorsed as a condition on the title deed of the property. A servitude can also be created by means of a reservation in a deed of transfer when property is transferred.7 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 7 https://www.vandeventers.law/Legal-Articles/entryid/245/what-are-the-3-most-common-property-servitudes

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. TO CLAIM AN EASEMENT THERE SHOULD EXIST CERTAIN CONDITIONS 1. 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; 2. 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. 3. 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 4. 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.8 CREATION OF AN EASEMENT 1. express grant of reservation An easement is said to be created expressly when the seller decides to sell part of his property Ex if a person who owns a piece of land fronting a road decides to sell the of his property, he need no to grant the buyer the right of away to the road. For an easement to take legal effect it should be created by way of deed and granted for a period that is equivalent to an estate in fee simple or for a term of years absolute .in circumstances where the land is registered the legal easement should be registered on the charges.

2. implied grant or reservation When a seller sells part of a land, legal easement is said to have been impliedly gran ted to the buyer or reserved in favour of the land that is retained for the owner .it is to be noted that the rules related to the implied grant of easements is far more generously interpreted than rules related to implied reservations. On a land with an unregistered title the easement is created by implied grant or impliedly reserved and not registered.in the case of lands with registered titles implied grants or reservation take an overriding interest provided certain conditions are satisfied. LICENSING A licence means a permission given by the Commission in respect of public land or proprietor in respect of private or community land or a lease which allows the licensee to do some act in relation to the land. But does not include an easement or a profit; A licensing agreement is a legal contract between two parties, known as the licensor and the licensee. In a typical licensing agreement, the licensor grants the licensee the right to produce and sell goods, apply a brand name or trademark, or use patented technology owned by the

8 http://www.kenyalawresourcecenter.org/2011/07/servitudes.html

licensor. In exchange, the licensee usually submits to a series of conditions regarding the use of the licensor's property and agrees to make payments known as royalties. s20. (1) Provides, that the Commission may grant a person a licence to use alienated public land for a period not exceeding five years subject to planning principles as it may prescribe. Moreover under s21, that it may serve a notice to quit upon the licensee at any time after the expiration of nine months from the date of the licence. The fee payable under a licence under this section, the period and the agreements and conditions of the licence, shall be prescribed by the Commission.9 The licensing agreement will also include provisions about the length of the contract, renewal options, and termination conditions, issue of quality, which party maintains control of copyrights and patents.10 Categories of licenses include bare licenses, contractual licenses, and licenses coupled with an interest. A bare license occurs when a person enters or uses the property of another with the express or implied permission of the owner or under circumstances that would provide a good defense against an action for trespass. An example, a person entering a gas station to ask for directions is a licensee and not a trespasser. Bare licenses generally are not transferable and are revocable at will by the property owner. The transfer of contractual licenses normally depend on the terms of the contract. Licenses coupled with an interest usually are both assignable and irrevocable, at least until the holder of the license has had a reasonable time to retrieve the property that gave rise to the license. Contractual license provides an express or implied permission to enter or use the property in exchange for some consideration. For example, the purchase of a movie ticket allows the ticket holder a license to enter the theatre at a particular time. Licenses that are acquired by contract normally include the right to use property that is protected by patent, copyright, or trademark. (Penalty for unpaid fees). - S22. The Commission may declare a licence granted under section 20 to be forfeited if the fees payable under the licence is unpaid for one month after it became due; if the occupant of the land fails to abide with the conditions of the licence 20. (1) The Commission may grant a person a licence to use alienated public land for a period not exceeding five years subject to planning principles as it may prescribe. The Commission may serve a notice to quit upon the licensee at any time after the expiration of nine months from the date of the licence. The fee payable under a licence under this section, shall be prescribed by the Commission.11 (4) The licensee may, with the consent of the Commission, transfer the benefit of a licence under this section, and the transfer which shall be endorsed on the licence. 9 land law act 2012 10 Natural principles of land law, Luac hobes,1952 11 land law act 2012

A license coupled with an interest arises when a person acquires the right to take possession of property located on someone else’s land, as when a lender acquires the right to repossess an automobile that is located on private property after the borrower has defaulted on a loan. A servitude creates a right that runs with the land indefinitely. (Access order). 140. (1) an owner of landlocked land may apply in the prescribed form to a court for an access order, granting reasonable access to that land (Implied covenant and conditions by lessee or licensee). 24. In every grant, lease or licence for public land, there shall be implied conditions by the lessee to— (a) pay rent and royalties thereby reserved at the time and in the manner therein provided; (b) pay all taxes, rates and charges of whatever description that may be imposed upon the land or the buildings Responsibility. She would have had exclusive possession of her room and the need to S36. (Notice of lease, license or agreement action on public land.) A notice indicating the availability of public land for use through lease, licence, or agreement shall be published in the Gazette when a determination has been made that such public land is available for a particular use. (2) The notice shall indicate the use proposed for the land and shall notify the public that applications for a lease, licence or agreement shall be considered12 (Forfeiture of licence). 32. Subject to any other provision of this Act, where the rent or any part thereof payable under a license issued under the act is at any time unpaid for a period of thirty days after the same has become due, or if the licensee fails to comply with the conditions, the Commission may make an application in Court to declare the license forfeited.13 PROFIT A PRENDRE In the law of property it is a right to use of another land by removing a portion of the soil or its products.Traditionaly, profit a prendre developed with the old English seaweed cases where one could get the right to go to the land of a seashore owner to collect seaweed for use as fertilizer on one’s land. The right has also been used in collecting sand, gravel, minerals and timber on another’s land today It is a nonpossessory interest in land similar to the better known easements, which gives holder the right to take natural resources. A profit a prendre may be appurtenant or in gross. If the profit is appurtenant, it means the right is attached to a specific parcel of land. The land that receives or holds the benefit (here, the profit) is called the dominant tenement (sometimes called the dominant estate), while the land that is burdened by the benefit is called the servient tenement (or servient estate). Remember that the servient tenement 'serves' the dominant tenement. For example, you may own property next to a stream. Your property may have a profit a prendre to fish the stream. As the

12 Natural principles of land, Luas Hobes, 1952. 13 Registered land act Natural principles of land,luas Hobes,1952.

owner of the property, you have the right to fish the stream. If you sell the property, then you lose the right and the new owner gets it because the right is transferred with the land. If the right is held in gross, it means that it is held by the individual personally. In our example above, if profit a prendre was a profit a prendre in gross, you could still fish the stream after selling the adjacent property because the right belongs to you personally. Generally speaking, under U.S. law, a profit a prendre can be created the same way an easement can. One common method is by an express grant or reservation. For example, you may deed a heavily forested property to another but reserve in the deed a profit a prendre to cut firewood. You should note that an express grant or reservation of a profit a prendre requires a signed writing under the Statute of Frauds. CAVAETS AND CAUTIONS Caution Is a notice in the form of a register to the effect than no action of a specified nature in relation to the land of which the notice has been entered may be taken without first informing the person. Lodging of cautions is provided for under section 71 of the Land Registration Act, section 71(1) A person whoa) Claims the right, whether contractual or otherwise, to obtain an intere...