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DEVELOPMENT & ADMINISTRATION OF PROPERTY RIGHTS IN LAND IN KENYA:

This is a fairly generalised topic that treats various topics as indicated.  The intention is to get a legal profile of the existing framework within which issues relating to development and administration of property rights in land.

Land as property
Its centrality in the production process and that simply means that land remains the major means of production as compared to the other factors of production and in our situation an agricultural based economy, land assumes a greater significance because we all know that agriculture is the main stay of our economy even with the emphasis placed on the drive towards industrialisation.

Consequently all transactions that take place in relation to land are bound to be more complex than if you are dealing with other forms of property and hence the need to formulate an appropriate framework within which the obligations that arise are dealt with.  The other characteristic is the scarcity of land, this is purely a function of the fact of our increasing population and the pressures that are exerted.  Several implications emerge e.g. the fact of guaranteeing land or access thereto for the people becomes almost impossible.  This means that land cannot just be treated like other species of property that one is conversant with.  Elasticity is another factor.   It is the case that one cannot increase supply of land from what one has, it does not expand and so its availability in terms of supply remains virtually constant.  That complicates matters and hence the need for regulation.

Land bears what other forms of property cannot match, that is its capacity to accommodate various interests either simultaneously or and this is in reference to its ability at any given time or within a given progression take care of various interest that may be conferred to different people without there being any conflict whatsoever.  for example where there is a grant of leasehold interest, a right goes out or certain benefits are conferred.  It is of that category that can entertain simultaneous or successive interests.

The fact that land is attached to each other creates or gives rise to certain mutual rights and obligations, notable among such rights would be the right of support that my property which is adjacent to yours expects and is entitled to, those rights and obligations arise and they are enforceable at the behest of whichever party has been robbed.  That places a complex scenario and there is a legal framework for determining what obligations will ensue by reason of these obligations.  The fact that it is indestructible makes it unique in a sense, although land is amenable to waste, it is virtually incapable of being destroyed.

There is the aspect relating to its ability to be conceptualised both in vertical and horizontal terms and the significance attached to this is understood when one considers the notion of property which means that contrary to traditional belief, it is possible to have within the same physical solum property that is suspended on top of 3rd or 2nd floor owned by different people that is made possible through the concept of sectional property unlike in the past where a title document could only issue from a given area this was the traditional notion.  It is now possible to have several titles depending on how many flats are there in one piece of land and that makes it unique.  The issue of mutual rights and interests and obligations has to be dealt with.  There are certain things that have to be necessarily shared so there are rules that will regulate those arrangements.  Facilities such as parking, pools etc.

On account of the foregoing characteristics which are associated with land as a form of property, there are certain important issues which arise true principle issues relate to
The manner in which land can be commoditized so that it is placed at par with any other forms of property that can be availed in the market;
The issue as to who exercises control over it.

In the context of development and administration of property rights, the first aspect can be construed as relating purely to the choice between operating an unregistered land system on the one hand and that of operating a recorded or registered land system on the other.  In a nutshell this boils down to no more than a comparative perspective of the merits and demerits of these two systems one of the registered system and the other one of recorded system.  The second aspect relating to control is related to the first one in the sense that it is the entity on whom such responsibility falls that will ultimately regulate all manner of transactions or activities which may be undertaken in relation to land.  In terms of regulations one has to think about terms of levels that are created, the duties and obligations that arise and their enforcement so that their involvement leads us back to the noted quality of land as a form of property.
Registration of land offers the surest route towards the commoditisation of land and availing it easily and safely in the market place in the same way as one would expect in the other types of goods.  What registration does is that it records interest in land so as to facilitate their ascertainment. As a process registration can be understood as involving recording of interests in land so as to facilitate and it makes effective any transactions in relation to such land by availing all material details on such property which can be easily accessed through carrying out of a search of the register.  Once duly effected registration has the effect of passing an interest in land in favour of the person so registered.  Of course this then effectively makes registration as a process to serve two broad functions
As a documentary manifestation of land as a commodity;
Avails a mechanism for providing vital information or a data bank for regarding the exact status of any registered property at any given time, this presupposes that the register will be updated at all time to reflect this position.

In comparison to the register system, there has to be something noted and under the system, title to property is very difficult to determine the process involved in determining who owns what.  The process is tiresome, risky and expensive and fraught with uncertainties.  It is the traditional practice of title investigation if one wants to appraise themselves of the title.   That is deduced historically going back to what transactions may have transpired regarding that property regarding that picture. The entire process is conducted without the benefit of registration and the purchaser has to investigate the unregistered title to ensure that there are no adverse claims to such property which precede the transaction, which is the decision to buy the property which accordingly means that the purchaser bears full responsibility for whatever is the outcome.  The duty of caring that an eventuality such as any claims with regards to the same property do not spring after he has ostensibly acquired the property.  That has its risks as well, there are a number of disadvantages which are considered as transferring to advantages that the registered system carries with it.  For property buyers, it is the trend that this is almost being replaced by a compulsory requirement in most jurisdictions that the registration of title to land be the rule rather than the exception.  This system has been there a long time and it is not until the early 1920’s that they started phasing it out.  It is still common in areas that have not been declared adjudication regions.

ADVANTAGES

The registered land system give title assurance so that in terms in administering property rights we have that title assurance that bestows confidence on any person dealing with the property in the sense that the owner will have been portrayed as having a good title to pass with regard to the property.  Such assurance is achieved through the process of maintenance of organised or systematic state recording and issuance of title document system to each successive owner of the property in question, which then is reflected in the register in a chronological order, it is easy to learn the history of the property if one wishes.  It also establishes a system of public data bank of some sort which contains records of all property titles such data can be accessed easily and is available to almost the entire public through conducting a search so that any interested persons can easily take advantage of that.

The other advantage is that it makes available a property map plan of scientific accuracy which is based on survey work that proceeds the process of adjudication and registration.  Such a map is revised and updated regularly so as to offer a clear picture in terms of identifying the property so one cannot be easily fooled by fraudsters.

In certain cases this system also serves to preserve in a secure place important documents of titles relating to various properties which would otherwise be completely lost or unsafe if left in private hands.  It has also been suggested that the system serves as a constructive public notice i.e. the records that the system serve as a notice to all and sundry as to the true status of the registered property.  By reason of that fact, it has been suggested further that it protects potential purchasers for value against other unregistered adverse interests which may have been acquired prior to the purchasing of the property in question since such unregistered interested are not reflected anywhere in the register and are therefore deemed to be unknown.  By protecting the purchasers, they are effectively cushioned against uncertainties that characterise the unrecorded system.  It has also been suggested that given the current policy towards the registration system, it helps in an important way towards abolishing the earlier inconclusive and costly title investigation system which characterises the unregistered system.  Instead it seeks to substitute one that is final and absolutely authoritative which can be carried out at the lands registry using the assistance of experts in charge of the registry.  Again the fact that it leads to the creation of a register means that all interests that affect that title be they mortgages, charges or whatever burdens that the title is subject to will easily be disclosed so that one makes an informed choice so that short of overriding interests that are never reflected on the register, everything else that affects that title would be evident and made available to the interested parties.  The process also leads to the proprietor of the particular property an official title document.  That official document bears details of the entries to be found in the register but most importantly it is a document that can be used by the proprietor in a number of transactions because it is valid and legitimate and the business practices whether it is seeking financial or offering security in other aspects, it makes it possible for the owner to rely on such official documentation.

Register system carries the provision of short and complicated forms that can be used in complex deals like when you want to take a mortgage, charge etc one need not refer to an expert as it simplifies some of these activities.  The fact that the intention is to create a public record means that there is a mechanism through which the public can access. So a search can be conducted at the relevant registry to enable a person acquaint themselves with any facts regarding the property.  There are no guarantees as it were so the search is usually self conducted.  The official search is the one conducted by the officials of the registry and in terms of accuracy, the registry is vouching that whatever information you have been supplied with as of that time reflect accurately the true position regarding the status of the property, it is more expensive in terms of fees required but much safer.

A registered system would to a large extent expose any defects which may have occurred in terms of various dealings with regard to land transactions, as the registry will not accept faulty documents until and unless such documents conform with the necessary statutory requirements.  It streamlines the whole exercise.  Because of the perceived advantages, it has been argued that it is perceived to reduced litigation in relation to land simply because it filters issues that make litigations arise in the first place.  It has also been suggested that since this is a state maintained and run system, what is created is some insurance scheme to indemnify those incurring any losses by reason of mistakes or omissions in the register.  The state insurance scheme will meet the costs arising to any party that may suffer such damage by reason of an error in the register.

 
 
 

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