2. THE NEED FOR WRITING AND REGISTRATION

2. THE NEED FOR WRITING AND REGISTRATION - W Writing and...

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Unformatted text preview: W Writing and registration are two of the basic tenet: of conveyancing. Both requirements were formally imIod uced in the 16'” and 17‘“ Century by the Statute of Frauds (1677) and Statute of Enrolments (1536) WRITING The CUFFEM Law _0f‘Clontract Act (Chapter 2.3) Laws of Kenya expressly states at Section 3 that all dl5P°5lll0n5 or land must inter alia be in writing to be enforceable. This formality fulfills three purposes namely a forensic function, an evidentiary function and a protective function. ' I Forensic Function it is the lntention of the law that land which is an attractive commodity is not fraudulently obtained by rogues; ‘The Statute-of Frauds 1677 expressly proved that the requirement of writing was to guard against fraud. Writing thus performs a forensic function in providing simple yet conclusive evidence of the fact of agreement. ' Evidentig Function As there are different kinds ofinterest which one may transfer in land, the content of any agreement is also as crucial as the fact of the agreements existence. Writing encourages precision and helps avoid disputes as to what interest has been passed. Thus one will not claim a transfer when the intention was only to lease. no") ' Protective Function "‘5" Writing it is stated performs the protective function by giving people a chance to think again before deciding to dispose of land or interest therein. An Owner may on the spur of the moment promise rights to land which on reflection he may wish not to dispose of. if it was to be oral, there may be no time for reflectlon. 1‘ may hOwever be argued that all the three functiom are not (OnCIUSlVE. Fraud may have been easy and ramPanl Prior to the 15”” Century when EVE“ Perjury laws Were scarce or non-existent but not so today when there can be adequate corroborative evidence to shOW 3 Proper oral contract. Evidentiary l-‘unction ‘00 may "0t hold as even simple written agreement: can be ambiguous as to the interest intended to be Passed. Besides why should the court hfiitate m g[ant an interest which 1, so clearly stated amt agreed orally. With regard to the PFOlECUVe Function. if it is caution We want why no1 Extend it to all other categories of comer“? 595ml” how may '35“ Written decision-5 do We make? No wonder Uien that the requirement of writing has been eroded via the use of doctrines of restitution, proprietary/Womissory estuppel and material representation. .i.. i REGISTRATION Besides writing any Conveyancing is only complete when registration is effected. Registration is basically the keeping of records of land or land transactions in the Land Register. it takes the form of either a simple deed or document record or a register record. What is registered is usually the title or Ownership to land and any instrument dealing with land or the disposal thereof. .'r\ Purpose and Advantages of Registration {,3 The basic purpose of registration is to record property rights and interest in land thereby making it possible to ascertain those rights and interest. The following are some advantages of registration: 1. Sew A registered proprietor acquires an indefeasible tile against the whole world. The security of tenure acquired through registration also gives the property OWN?" a ’lgl“ ‘0 indemnity from the Government where there is fraud or an error in the Register. Sce RTA 55.23 and 24; RLA 55.144-147,butnote the qualification in 5.143(1). 2. Reduction of unnecessary litigation: The registered Owner can transact or settle hi5 lfit‘d Without the fear of being sued to challenge his title because upon registration, he acquires an indefeasible title against the whole world. 3. Prevention of refragmentatjon of land: Registration helps to determine whether or not a particular piece of land can be subdivided because his title details pertaining to the land. such as acreage, will have been noted in the Register. 4 Facilitation of Government property tax administration: Through registration, the Government is able to identify persons/properly Owners on whom to levy tax in respect of a particular picco of land and also keep track of the Government's planning programmes. 5. Efficient administration and facilitation of the loan system: The security of title which flows from registration makes it possible for property owners. to obtain loans from financial institutions. A prospective purchaser has more faith dealing with an owner whose land is registered. 6. Prevention of concealed dealings in land: Registration gives publicity to land transactions. Since the register is a public document and is therefore open to the public, it is possible to ascertain who owns what interest in land, Summfl of Land Registration Systems in Kenya There are 5 systems: RDA, LTA, CLA, RTA and RLA. 1. RDA‘l9011C32285) Before the enactment of the LTA, GLA, RTA and RLA, isolated transactions relating to land were recorded and registered in an unco-ordinated manner under the RDA. There were no separate folios for each parcel of land. "Hie record of transaction under this Act was merely evidence that a transaction had taken place, but was not proof of the legality of the transaction. There is no guarantee of title under this Act. Presently, the Act is used to register documean other than those alienating interesb in land, Examples of such documents are Powers of Attorney and Building Plans. Sale Agreements are also registered thereunder. 2. LTA 1908 (Cap 282] This Act deals with matters relating to private Ownership of land at the coast. The office of Recorder of Titles was set up under this Act to deal with adjudication of private claims to land. Titles were issued on proof of ownership. If a claim of Ownership was unsuccessful, the land in question became Government land. Titles issued under the LTA are not Government grants. They are issued on the basis of existing rights and are freeholds. The LTA introduced an advanced form of registration of documents with a separate folio for each piece or parcel of land. The register under the LTA is a volume called an Abstract Register. in the Register, short particulars of documents presented for registration are recorded. Copies of these dOCuments are kept in large envelopes called Deed files. The Government does not guarantee title under the LTA and no indemnity is provided. Upon enactment of the RTA in 1920, new and successful claims under the LTA were registered under the RTA. Adjudication would take place under the LTA but title would be registered under the R'l'A, Since the enactment of the RLA in 1963, some of the titles registered under the LTA, CLA and RTA have been converted to the RLA on a voluntary basis. 3. THE GLA19151CaQ 280) This Act deals with land which was subject of COVernment gratth prior to 1920, whether freehold or leasehold, with the exception of leaseholds which have been converted from 99 years or to freeholds. Such leaseholds are registered under the RTA. The Register under the GLA is modeled on that of the LTA. A separate folio is opened for each piece or parcel of land and transactions are registered against each parcel. Copies of all deeds are kept in the Registry. Short particulars of each transaction are recorded in a volume referred to as an Abstract Register. It is the deed, not the title, which-is registered. As such, when investigating title under the CLA, it is pacessary to trace backwards upto the Government grant in order to ascertain a good root of the title. The State does not guarantee title and no indemnity is pr0vided. There are two registries, One in Mombasa relating to public/Government land at the coast, and the other in Nairobi in respect of the remainder of the country. 4. l<T/\1920 Ca 281 This Act relates to the following lands; (1) All land which is the subject of a Government grant since 1920 or a Certificate of Title issued by the Recorder of Titles after 1920. (2) Leaseholds which have been converted from 99 years to 999 years or to freehoids. (3) Titles that have been converted from the LTA and GLA on a voluntary basis. (4) Grants that are made by local authorities in respect of trust land. Trust land is land which is vested in a local authority in whose area the land is situated for the benefit of persmis ordinarily resident in that area. The title is a Grant or a Certificate of Title issued to the proprietor, A duplicate of the Grant or Certificate of Title is kept in the Registry. The original Grant or Certificate of Title is kept by the proprietor. The State guarantees title and provides for indemnity. See 55.13 and 24 of the R'l'A. Under the RTA, coastal titles are prefixed "CR" for Coastal Registration. For the remainder of the country, the prefix "lR" for inland Registration. For any trust land the prefix is "lRN". A piece of land under the RTA may therefore be referred to using iLs Title Number which is CR. [R or IRN, or by means of a Land Reference Number which is a number given to that piece of land by the Director of Survey upon survey and issuance ofa Deed Plan. Under the RTA. there is a Register for every piece of land. The Register is a duplicate of the Grant or Certificate 01 “We issued to the proprietor. The original Grant or Certificate of Title is kept by the PrOP'lC’lOF- Registrable transactions under the Ad are registered against each title. /\ memorandum 01 [he transa‘ifion or dealing is endorsed 0n the Register and on the original Grant or Certificate of Till? iSSUE'J ‘0 Ute proprietor- For this reason, the original Grant or Certificate of 'litlc must be Pdeuced to the Registrar wheneizer an instrument Containing any dealing in the land is presented to the Registrar for registration. The duplicate of the Grant or Certificate of Tile and the instruments which support the memoranda or entries in the Register are kept in a Deed File. For titles under the LTA, CLA and RTA, it is requlred that a Survey Deed Plan be prepared for every . piece of land. That Plan must be attached to the title document for purposes of identification of the piece of land. The Deed Plan is prepared by the Director ofSurvey. S. RLA1963(C32 300) This Act g0verns the foli0wing lands: (1) Titles that have been converted from the LTA, CLA and RTA on a voluntary basis. (2) Adjudicatiorts under the Land Adjudication Act (Cap 284) and Land Consolidation Act (Cap 293) since 1963 and successful claims under the LTA after 1963. i (3) Titles which were registered under the Land Registration (Special Areas) Act of 1959. This was land held under customary law and registered after adjudication and consolidation. The general rule under the RLA is that a proprietor’s title is unimpeachable except on grounds of fraud or mistake to which the proprietor is a party. Exception: A first registration however, cannot be impeached - See: S. 143(1) RLA. in addition, the State guarantees title and prevides for indemnity. See 55.144-147. Under the RLA, the Director of Survey is required to prepare a Registry index Map for every District. Survey Deed Plans are not required under the RLA, unlike the LTA, CLA, and RTA. The Index Map is kept by the District Land Registrar in the appropriate District Land Registry. Land under the RLA is described by reference to it serial number which is a combination of the District, section or Block and the Parcel Number. The title document under the RLA is a Land Certificate (fer absolute proprietorship) or Certificate of Lease (for a leasehold). These are only i55ued on rmuesl by the proprietor upon payment of the requisite fee. Where they are issued, they must be produced to the Registrar when presenting an instrument for the registration of a transaction or dealing. The form of the Register is found in the First Schedule to the Act. There is a Register for every piece of land (absolute proprietorship) and a separate Register for every Lease See S. 10‘ The Register is divided into 3 sections and modeled along the Register found under the Law of Property Act 1925 of England. it contains the following sections; 1. The Property Section: This contains the title of the Land or Lease and any plan. 2. The Proprietorship Section: This contains the name and address of the proprietor and any inhibition, caution or restriction affecting the owner's right of disposition. 3. The Encumbrances Section: This contains and encumbrances that affect the land e.g. a charge or any right adversely affecting the land or lease. The instrument which support the entries in the Register are kept in a Parcel File. Once the Register is complied, it is conclusive evidence of the matters stated therein. Therefore anyone dealing with a proprietor under the RLA is not required to trace backwards to find out how the person became a proprietor. See 5.39. it may well be argued that it is only under the RLA that there exists a register while the rest, Even the RTA, it is a "Deed System". REClS‘l'ltlES: SUMMARY RDA - Registry of Documents created by Statute in Nairobi and Mombasa LTA - Land Titles Registry in Mombasa only CLA - Government Lands Registry created by Statute in Nairobi and Mombasa and headed by the Commissioner of Lands RTA - Land Titles Registry created by the President in Nairobi and Mombasa and heatletl by the Commissioner of Lands RLA - District Land Registry created by the Minister in every District and headed by the Chief Lands Registrar. Care must be taken that the Conveyancing document is not only presented at the right Registry but is also registered and signed by the right Registrar. Effect of Registration Registration of Land gives the registered proprietor absolute ownership thereto which ownership is ' indefeasible unless there is fraud. in the case of registration under the RLA even fraud does not defeat a first registration (5. 143). Registration also has the effect of passing an interest. The interest hmvever passed subject to any existing priorities (any other interest lodged for registration prior to the documents to be registered. cf. for ranking of priorities see: - RDA - 5.7 - GLA » 5.104 - LTA - 5.60 RLA — S. 42 RTA - S. 28 lTPA - S. 78. interest is also passed subject to any encumbrances and other statutorily recognized but unregistered righm. in the latter case lie the overriding interest which have been defined in the case of National Provincial Bank Limited -va- Hastings [1964] Ch. 9 as: é" "all such rights, interests, encumbrances and powers not entered in the register but subject to which disposition are by the Act to take effect". Such rights are not reflected in the register but the Statutes especially the RLA at 5.30 recognizes them. in this regard one needs to reflect on the various cases deaJing with the survival of customary law rights surviving a registration under the RLA. The Court of Appeal has recently conclusively held in the case of Mbui -v5- Mbui 2005 1 E. A. 7.56 that customary law rights are not extinguished by a first registration under the RLA which gives the registered owner absolute and indefeasible ownership. Registration also has the effect that it identifies the substantive law applicable to any land. The two substantive law systems are found under the RLA and the ITPA. Any land not registered under the Rl./\, has the lTP/‘t as its substantive law. Finally registration has the effect that registered documents form conclusive evidence in court unless proved otherwise. Effect of Non-Regisb'ation Nondegistration means simply that there is no interest passedt Section 32 of the RTA has actually moved a step to declare all documents purporting to transfer interest in land to be void and invalid if not registered. However, particular problems have been created with regard to leases required to be registered which are not actually registered. Case law hu consistently upheld the view that such leases are not void or invalid but they operate as contract inter parties enforceable as between the two parties. (See Merali -3- Parker [1956] 29 K. L. R 26, Clarke -va- Sondhl [1963] E. A and Rogan - Kamper -—vs- Grosvenor [1977] KLR 123). It is noteworthy that 5. 32 of RTA and S. 38 of RLA have been amended to incorporate this viEW of contract inter partes in relation to Leases which ought to be compulsorin registered to be effective. Reference ought to be made to the following Statutory Provisions which stipulate compulsory registration LTA - SS. 57-59 CLA - 55.95, 99 — 102 RTA — 55.20, 34, 40, 46 RLA - $5.38, 47, 65, 85, 94—96 ...
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