WHAT IS CONVEYANCING IN PROPRIETARY LAND TRANSACTIONS

The legal procedure of transferring an ownership interest in real property from one party to another is referred to as conveyancing ,  

A Conveyance here means the legal drafting written instrument such as a deed or a lease that transfers legal title of a property from the seller to the buyer stating the agreed up on price  and date of actual transfer as well as the obligation and responsibilities of both parties.

There are three critical elements of conveyancing,  

• there has to be the process,  

• the legal title and, 

• the transfer of modification.

Examples of such conveyance instrument are inclusive, Lease ,Mortgages and Charges,  Easement, Assent, Re-conveyance  among other tools.

In Kenya, conveyancing started back in the medieval times. There exist certain legislations that which governs conveyancing in Kenya, note that some of this acts are repealed but they are still operational. The Crown Ordinance, The lands Titles Act, Registration of Titles Act, Registration of lands Act, The Government Lands Act, The land control Act and the Indian Transfer Property Act. Today, Conveyancing is regulated by the Lands Act and the Land Registration Act.

 

The  Process. This actually refers to the legal parameters which set the transactions and the persons behind the process through a legal instrument.
The Interest. This deals with both the procedure and instrument which the entails the legal title This process which should be done in a modest and in protocol form, this includes investigations, authencity and finally certainty especially for a conveyance conveyancer should therefore be a skilled and qualified personnel to do the legal drafting of the contract of sale and  do some financial transactions, his key role is to represent the buyer and the seller in legal transactions.

Land law according to the Oxford dictionaries can be defined as the branch of law governing real property. Land law can also be defined as the form of law that deals with the right to use, alienate or exclude others from land.

Article 260 of the constitution of Kenya underpins the definition of LAND to include:

1. the surface of the earth and the subsurface rock;
2. any body of water on or under the surface;
3. marine waters in the territorial sea and exclusive economic zone;
4. natural resources completely contained on or under the surface; and
5. the air space above the surface.

The ‘us utendi’ maxim defines property as the resource where an individual has the right to use and abuse it. Property can therefore be defined as ‘ any tangible or non-tangible entity owned by a person or a group of persons who have the right to consume, sell mortgage, transfer, exchange and under some circumstances destroy the property to the exclusion of other individuals.

 

CLASSIFICATION OF PROPERTY

Property can be classified into three categories:

1. Real and personal property: real property usually referring to land (tangible) and personal property which are rights that can be enjoyed over a specific property (non-tangible).
2. Public or communal property: public denotes ownership by government, communal property is owned by the state (custodian) and is available for the public to own. It is important to understand that the concept of communal property is an emerging one; thus showing the dynamic aspect of property through time.
3. Intellectual Property: This is exclusive to rights created by innovation and creativity on various properties.

Conveyancing is generally understood as the transfer of estates and interests in land by legal process. Black’s law dictionary defines Conveyancing as the act or science of or business of drafting and preparing legal instruments such as deeds or leases that transfer an interest in real property.

 

RELATIONSHIP BETWEEN LAND LAW AND CONVEYANCING

• Land law and Conveyancing are certainly two different things but it is paramount to understand that each complements each other. 
• Land law as aforementioned is the law dealing with the principles that define the actual rights and interests of an owner or owners on property and land over others whereas Conveyancing is the process of transferring  the rights and interests on property and land from one to another, thus making it a procedural tool.
• However unlike in land law where one party is sufficient to have rights and interests over property and land, Conveyancing requires more than one party being that it is a transfer and the two parties are important to the process.
• The constitution of Kenya 2010 provides for a legal framework on land by providing inter alia; definitions of land and land systems as well as setting out land legislative obligation on parliament. This follows as a result of the clamor for change reforms on land administration and management of land in Kenya a while back
• In response to this legislative obligation, the parliament enacted new land regimes in 2012 namely;The Land Act, The Land Registration, The National Land Commission
• These replaced the past regimes which included, The Land Titles Act, Registration of Title Act and Registration of Land Act, The Government Land Act and The Indian Transfer of Property Act
• The current land regime in Kenya comprises of; Constitution of Kenya The constitution of Kenya 2010 gives an elaborate definition of land and also provides that parliament shall enact laws relating to the management and administration of land in Kenya.The constitution also categories land into three broad categories under section 61 namely;-
• Public land. It consists land alienated by government, lawfully held or used by any state organ, land transferred to state by way of sale, reversion or surrender, land in respect of which no individual or community ownership can be established by any legal process, land in respect of which no heir can be identified by any legal process or land which contains minerals and mineral oils are found.
• Private Land. It consists of registered land held by any person under any freehold tenure, land held by any person under leasehold tenure, any other land declared private land under an Act of Parliament.
• Community land. It consists of land lawfully registered in the name of group representatives or transferred to a specific community by any process of law.

The Land Registration Act 

• The purpose of this statute is to revise, consolidate and rationalize the registration of title to land as well as give effect to the principles of devolved government in Kenya. It has introduced a number of changes in the registration of land interests in Kenya and where it has not it has consolidated the existing provisions into one Law. 
• Some of the important highlights of this statute include;   Defining a charge as including a Mortgage,Emphasizing charge as a security only and not a transfer, providing for the establishment of a land registry and the appointment of a chief registrar of land, providing for the effect of registering an interest in land just as it was provided under the Registration Lands Act, providing for the doctrine of indefeasibility of Title as well as elaborate exceptions to the doctrine namely; misrepresentation, Fraud and procedural acquisition of land.
• The Act further repeals the following laws;The Land Titles Act, The Registration of Titles Act,The Registration of Land Act, The Government Land Act and Indian Transfer of Property Act.

The National Land Commission Act

• The National Land commission Act can be traced in Article 67(1) and its functions outlined in article 67(2) of the constitution of Kenya. The purpose of this Act is to outline the functions of the National Land Commission, its composition, qualification and procedures of appointment to the commission. It further gives the effect to the objects and principles of devolved in Land management and administration in accordance with the principles of land policy set out I n Article 60 of the constitution of Kenya and national land policy.

The Environment and Land Court Act, 2011

• This Act is of the same status as the High Court as it establishes the judicial forum for adjudicating matters relating to land and environment, it is of the same status as the High court.

Land Act 2012

• This is an enabling act to the constitution. It enables article 68 of the constitution of Kenya 2010, to revise, consolidate and rationalize land laws in Kenya and provide for the sustainable administration and management of land in Kenya.
• The act provides for the land systems in Kenya i.e. Freehold, Leasehold and Customary land holding. The customary land rights are limited with consistency with the Constitution. The Act also provides for the management and administration institutions which develop policies facilitate implementation of land policies, coordinate management of National Spatial Data Infrastructure and formulation of standards and it monitors and evaluates land sector.
•  The Act provides for the methods of acquisition of the Land which are; allocation, land adjudication process, compulsory acquisition, prescription, settlement programs, transmissions, transfers, long term leasing exceeding 21 years created out of private land or any other manner prescribed by the act.The Act provides for the management of public land. It gives guidelines in the management of public land, conversion of public land, allocation; reservation of public land development plans, revocation of management orders and conservation of Land based natural resources. It provides for administration of public land. It accounts for the leases, license and general agreements for public land and the conditioning governing the above.
• Part 4 is basically on the community land. Section 37 provides for the management of community land enacted pursuant to article 63 of the Constitution. 

• In conclusion, it is right to say that there is a close relationship between conveyancing and land law. It is right to say that conveyancing overlaps with land law. Land law gives us the principles that define rights and interests in land and has been referred to as “Law at Rest”. Conveyancing on the other hand deals with procedure or the practical legal mechanisms by which those rights and interests are transferred from one person to another. It is “Law in Motion”. 
• The subsequent legislation which govern land law and conveyancing get their full mandate under Chapter Five of the Constitution of Kenya 2010.These legislations were put in place to ensure legal and authorized disposal or transfer of land and property from one party to another. These legislations have ensured the reclamation of waste and unoccupied land. Some laws he such as the Registered land act played a tremendous role in ensuring that Africans registered land under their names. 

A CONTRACT OF SALE VIS A VIS PROPRIETARY LAND TRANSACTIONS LIKE CONVEYANCING
Contracts of Sale are agreements to exchange goods, service or property that are subjected to from the vendor and purchaser. Contract of sale is executed when the vendor and the purchaser sigh an agreement in which the vendor promises to convey ownership of the property to the purchaser who in return promises to pay an agreed consideration. Under Section 14 of the Sale of Goods Act, the seller has a duty to pass a good title to the buyer and under the Act for this case the deed is the title.

The seller’s obligations are under Section 3 to deliver the goods under consideration, The contract is said to have been completed when the vendor delivers the deed to the purchaser and the purchaser pays the vendor he price, by executing the sales agreement, he purchaser becomes the equitable land owner. The vendor retains the legal title, but holds the title  only as security for payment.

LICENCE

It traces its meaning from  a Latin term Licentia, meaning freedom or liberty.This are the class of rights that permits an individual (s) to enter or to occupy space lawfully into a property through official documents that  gives them permission to do something .In the occurrence where the same entry would amount to trespass of land if there is no subsequent permission, this was the principle stated in the case of Clifford v O’ Neil.

As in the Lands Act, Sec 2 defines a permission given by the Commissioner of Lands in respect for  Public land, and a proprietor  in cases of private or community land which allows the beneficiary to perform his act upon the land. Failure to obtain this permit can be illegal 

trespass. Section 20 further elaborates on Licences Moreover, it does not include easements to property.

A Licensee is the individual who is benefiting from land, a Licensor is the person who grant the permit. Under the Common law, Licence were given at a specific fee which is attached to it ,but through the development of equity.

Contractual licences are granted as in regard to a contract which is seconded by a consideration, they take the form of short term Licences, medium or long term and they are executed on daily basis. Under the common law, such licence were revocable at a time, but as equity developed, it was illegal for a licensor to revoke the licence as long  as he had reasonable facts.

Simple licence is a licence that which no charge is added and without a fee. A licence coupled with an interest  is whereby the owner benefits from both the  bundle of right of land and at the same time the interest attached to it. Licence by estoppels, this  means that when the owner creates a representation of existing facts that allows the owner.

 

FREEHOLD

It refers to a situation where an individual  refers has absolute proprietorship or rather permanent ownership over land,  hereby the owner has all the rights and obligations as defined in the land the usa utendi abu tendi, maxims that state an individual has the right to use and abuse land, also to enjoy fruits. In Kenya this land is under the agricultural lands based the rural areas.

In Free simple, the proprietor has a bundle of absolute rights will be for long as the proprietor is alive and he has perpetual successors to the property. Additionally, the rights include, right to sell, right to give as a gift, through adverse possession. It’s important to highlight that each  new owner  has equal rights to enjoy the land as if it was  originally theirs. In the occurrence where the freeholder is dead and there are no successors alive, the land reverts back to the Government from which it retains its original ownership.

LEASEHOLD 

This are the terms in an agreement that contains a bundle of rights held under a rental agreements, by which the owner  gives another the right to occupy or use land for a specified period of time. Sec ion 2 of the Lands Act defines the word lease as a grant with or without consideration to a third party. This can be achieved  either through short term leases or periodic leases as per section  57 and 58 of the Lands Act.

Additionally Here Section 54 of the Land Registrations Act provides for the registration of leases in the Lease is the legal documents that enshrines the rights and duties including interests among the parties, the lessor here is the original owner and the lesee is the party which is actually benefitting from it. In Kenya 99 years for urban areas and 999years for Agricultural land.

Subleases are also part of leases; however it is excluded from the agreement for lease. The test for the validity of the lease is based on four keynote factors, the lessee must have exclusive property rights, there has to be a clear define premise of land, definite interest and last, a period of the lease.

 EASEMENT.

Non-possessory rights or interest as per  the case of Estate of Schas .It can also mean grants or privilege attached  to a parcel which permits the  land owner to make use of another nearby piece of land for the benefit of  his own land is  termed as easements. Under easement ,there exist two basic types of easements, this are the easement appurtenant and gross.

As per the Lands Act, Sec 136 classifies easements being a dominant land and serviette land for the beneficial use of the general public .The dominant tenement here is the one who benefits from the existing easements whereas the servient is the one who is the proprietor of the easement in question .Under the Registered Lands Act, Sec 3 defines easements as the rights attached to land and to a particular extent but is unprofitable. Some of the examples to such grants are for example roads ,rivers or electricity lines.

In the case of  Oliver v Symons the respondent erected a number of gates across the tracks of his farmyard to his appellants land, herein the gates meant that it was not possible for the appellants to get their right of way using large agricultural vehicles. It was positioned that there was substantial reference to right of way because the fence rendered useful and widely used by the community and ruled in the favour of the claimant a similar fact case was in  Zieleniswski v scheyd.  For easements to be termed valid  there are two main essential elements, this includes ;

Expressly stated, This is based on the contractual rules must be  able to accommodate the dominant tenement and the rights stated should be that contracts should be in writing, herein .the owner must expressly stated the rights to another person. Easement adequately enjoyed i.e the right of way.

Subject matter of the easement, this  means that the  grant prescribed to the servitude should be in such a way that the owner can  legally grant rights  and the rights and the person receiving the rights can enjoy, in addition the rights must highlight to what extent and the scope so that the rights may be effected

There are a number of ways easements can be lost or rather termination this includes, a certain occurrence of some conditional precedent, court order executing in its prescribed form that is restrictive orders. Easements are used to confer the benefits to the land owner hence if the benefits cease, it becomes inexistence.

PROFITS A PRENDE  

It’s a French word meaning ‘right of taking’. This is the right to take something off the land of another person’s land or something that is part of the soil or is in the soil and the property of the land owner. Examples are grazing, fishing, quarry and timber among others. It can also mean that it’s an interest in land that creates another interest and give a a person the right to take off or use the interest.

Creation of a profits apprende can be done expressly by an agreement between the property owner and the owner of the profits The instrument used to create profits apprende must be clearly indicate the land which is subject to the burden  and the land to which the benefit is appurtenant.

Termination of the profit can occur in a number of ways including ,merger, release, abandonment , and misuse, Under profits aprende ,it is has a primary difference from easement is that profits excludes dominant tenement.

 REFERENCES

1. Article 40 of the constitution of Kenya 2010
2. The constitution of Kenya Review Commission (CKRC)
3. Sec. 68 of the Constitution of Kenya
4. Preamble to the Land Registration Act
5.  Sec 56(5)
6. The Constitution of Kenya, chapter 5 article 67(1) and (2)
7. Constitution of Kenya 2010, article 60
8. Section 4 of The Environment and Land Act
9. The Land Act of 2012 sec 5(1), 6, 7.