Introduction to

Conveyancing

LECTURE 2
 TERMINOLOGY USED GENERALLY IN
CONVEYANCING
 Construction – interpretation of a conveyance
 Engross – to make the final fair copy of a
conveyance
 Adverse Possession – refers to longstanding
unlawful possession of a property or land. If
such possession has continued without
challenge from a legal owner for 12 years or
more, it may be possible for the occupier to
claim an interest in the land and to have it
recorded at the Lands Registry as Possessory
title.
Freehold – also known as absolute interest or
estate in fee simple. Relates to an interest in
land with no time limit

Leasehold - Leasehold is a form of ownership of

property where the property is owned for a set
period of time as opposed to Freehold where a
property is owned forever.

Licence – Personal permission granted by a

land owner to another person to occupy,
personally, for consideration, the other’s land,
and may be for a limited time or unlimited.
Apportionment – an important concept
commonly featuring in long lease
transactions where ground rent or rates will
usually either have been paid in advance for
a period by the Vendor or where the Vendor
is in arrears.

 Assent – a specific form of deed used in

conveyancing of a deceased’s property to the
beneficiary entitled to the property.

 Assignee - the person to who a lease, right

or interest is transferred.
 Assignment - the process of transferring
rights, benefits or interests. The term is
typically used for lease transactions but can
also apply to various other rights such as
guarantees currently in the name of the seller
which need to be formally transferred to the
buyers.

 Beneficial Ownership - The beneficial

owner is the owner legally entitled to the
proceeds of sale. The beneficial owners are
typically the same as the legal owners, but not
necessarily so.
Boundary - Property boundaries in
relation to which the Land Registry
filed plan is generally conclusive

Caveat Emptor - “buyer beware”.

Charge - Legal document, often a

mortgage, which creates a financial
burden (charge) against the property
when the property.
Breach of Contract - Following exchange of
contracts, it is legally binding on buyer and
seller. Should either party fail to complete or
otherwise breach the contract that defaulting
party will be in breach of contract

Breach of Covenant - often refers to breach

of a term of a lease and the situation often
occurs in conveyancing when a leaseholder
has breached a term of his/her/their lease
which may or may not be capable of being
easily remedied.
 Completion Date - The date agreed in the
contract when funds must be transferred and then
upon receipt keys released by the seller with
vacant possession.

 Deed Of Covenant - a specific form of a covenant

and as regards residential property, a typical
example would be in relation to purchasing a
leasehold flat where there is a management
company and where the lease may stipulate that
any new owner provides a direct contractual
commitment from the new owner to comply with
the terms of the lease and in particular service
charges.
 Deposit - The amount payable by the buyer to the
seller on exchange of contracts. The deposit amount is
generally held by the seller’s Advocates and not
released to the seller.

 Disbursements - Payments which are not the

lawyer’s fees but which the lawyer must pay on the
client’s behalf, whether seller or buyer, to third
parties, in order for the transaction to proceed.

 Easement - A legal right to use or access land or

property owned by someone else.
 Filed Plan - Official Land Registry plan for an
interest in land, drawn to a standard scale.

 Forfeiture - Forfeiture relates to a legal right to

end a property contract due to a fundamental
breach.

 Joint Tenant - One of the 2 ways in which

property interests can be co-owned. The legal
owners hold the property on trust for the
beneficial owners, often the same.

 Lease Term - The length in years for which the

lease is granted.
 Management Company - Generally applies with
leasehold transactions and most commonly with
large modern developments.

 Mortgage Redemption Penalty - A fee which

may be payable to the lender if the mortgage is
paid off before a certain period has elapsed after
the mortgage started

 Non-Owning Occupier - Adult person living at a

property without being a legal owner of the
property.
 Notice To Complete - Document served on a
seller’s or buyer’s Advocates in the event of
failure by the other party to complete on the
completion date.

 Power of Attorney - Refers to document used

by a person to delegate certain legal powers
and authority to another person. May apply to
conveyancing where a seller or buyer is abroad
and cannot sign necessary documents, so they
may grant a formal power of attorney to
someone else.
 TO READ:

Abuttals
Profitsa prendre
Servitudes and Encumbrance
Tenants in common
Tenure
Valuation
Restrictions
 APPLICABLE LAWS

Land Act, 2012 – Substantive

Land Registration Act, 2012 –

Procedural

Law of Contract Act (cap 23)

 FORMALITIES IN CONVEYANCING

1. Documentation

2. Verification
Writing

3. Attestation

4. Conveyance/Deed Registration
The Formality of Writing and the Necessity
Thereof

The contract for sale of land precedes a conveyance.

Section 3 of the Law of Contract Act – any

disposition of any interest in land can only be enforced
when the same is reduced to a written document, signed
by all parties and signature of all parties attested to by a
witness when the contract is signed.

Proviso: this does not apply to a contract made in the

course of a public auction by an auctioneer nor shall
anything in it affect the creation of a resulting, implied
or constructive trust.
 Purpose of Writing
Forensic Function

Evidentiary Function

Protective Function
 THE FORMALITY OF
REGISTRATION
No right will be conveyed if the conveyance is not
registered. Registration is the keeping of records of land
dealings at the Land Registry.

Section 24 LRA – the effect of registration

Certain transactions must be registered before any

interest is passed:
 Transfers

 Long Term Leases

 Charges
Registration however is subject to: (sec 25 & 28, LRA)
(inter alia)

 Spousal rights over matrimonial property;

 Trusts, including customary trusts;

 Rights of way, water, profits subsisting at the time of

first registration under the Act;
 Rights of compulsory acquisition, resumption, entry,
search and user conferred by any other written law;
 Leases or agreements for leases for a term not
exceeding 2 years, periodic tenancies and
indeterminate leases;
 Registration of a title or any person who is the proprietor of
land extinguishes the communal system as it vests in the
registered proprietor and he/she becomes the absolute owner
of the land/lease/charge with all the rights and privileges
thereto

Kanyi –vs- Muthiora [1984] KLR 712

The registration of land in the name of one party under the
RLA would not extinguish the rights of other parties who were
entitled to the land under Kikuyu Customary Law

Jason Gitimu Wangara –vs- Martin Munene Wangara &

Others [2013] eKLR; Kerugoya ELC No. 278 of 2013
The registration of the plaintiff as the proprietor in the suit
premises, pursuant to the provisions of the RLA would not
defeat the possibility that he held the land in trust for other
persons as beneficiaries.
James Ngugi Mbugua & Another –vs-
Grace Wairimu Mwithiga; Nrb HCC No.
1174 of 2002 (O.S)

Easement by operation of law – right to use a

road passing through another person’s land
where the road is the only means of access to
the other land – right of access to exist for a
long as the necessity of the easement exists.
 TO READ:

 Obiero –vs- Opiyo & Others (1972) E. A.

227

 Mbui –vs- Mbui (2005) 1 E.A 256

 Esiroyo –vs- Esiroyo (1973) E. A 388

 THE GOALS OF REGISTRATION
 Achieving security of tenure
Upon registration, any transferor or registered
proprietor has security of tenure over their
interest over the land. This security gives one
the right to indemnity from the government.

 Obiero –vs- Opiyo; HCCC No. 44 of 1970

 Gitwany Investment Ltd –vs- Tajmal

Limited & 3 Others [2006] ; Nairobi HCC
No. 1114 of 2002
 Reduction of unnecessary litigation
During the process of registration, the size and
the owner of the land parcel are conclusively
established.

 Facilitation of Tax Administration

This helps the government to keep track of the
user of any particular land parcel. Government
can track tax evaders easily

 Sec46, LRA
 Stamp Duty Act, Cap 480
 Certainty
Registration creates certainty and
therefore, security of title.

 Prevent Fragmentation of Land

In order to sell or sub-divide, or even
amalgamate land, one needs consent.

 Land Control Act, No. 34 of 1967

 Land Planning Act, No. 37 of 1968
 How and When Registration is Effected

 LRA – no time limit, but the sooner the

better.

 There are specific forms which must be

presented in triplicate to the relevant
registry.

 Section316 Companies Act – need to register

within 42 days to ensure no fraudulent
references when the company is being wound
up.