Land Estates and Ownership Types

Land Estates

• An estate is an interest in land which can become possessory and measurable by duration.
• Estates can be held consecutively or concurrently.
• Consecutive ownership includes freehold and leasehold estates.
• Concurrent ownership includes joint tenancy, tenancy in common, and tenancy by entirety.

Consecutive Ownership

• Under common law, recognized legal estates are grouped into freehold estates and non-freehold estates.
• Freehold estates include fee simple, fee tail, and life estate.
• Non-freehold estates include estate for years, periodic tenancy, tenancy at will, and tenancy at sufferance.
• Distinction between freehold and non-freehold estates was a consequence of feudalism.

Freehold Estates

• Freehold estates share the common feature of having a duration that lasts for an indefinite period.
• Freehold estates signify the largest land rights a sovereign can grant.

Fee Simple

• Fee simple represents the largest quantum of rights in land.
• Fee simple connotes land use rights for the grantee's and their heirs' lives.
• Historically, the estate endured as long as the original tenant or any of his heirs general survived, including collaterals.

Fee Tail

• A fee tail lasts as long as the original grantee or their lineal descendants are alive.
• Fee tail was designed to keep land within the family.
• Fee tail descends to heirs special, i.e. to lineal descendants only.
• If the original tenant died leaving a brother but no lineal descendants, a fee simple would continue, but a fee tail would end.
• Creation of a fee tail uses language such as "to A and the heirs of his body."

Life Estate

• A life estate is not a fee, it is not an estate of inheritance and cannot continue forever.
• A life estate lasts only for the lifetime of a person, either the holder or another person.
• The creation of a life estate commonly includes the phrases "to B during his life" or "to B for life."

Leasehold Estates

• A leasehold is an estate for a fixed term of months or years.

Estate for Years

• Any estate for a fixed period of time qualifies as an estate years, even a monthly lease.
• Fixed beginning and ending dates are mandatory.
• No notice is needed to terminate an estate for years.

Periodic Tenancy

• Periodic tenancy continues from one period to the next automatically, unless terminated by either party with notice at the period's end.
• Examples of periodic tenancy include year-to-year or month-to-month tenancies.
• Section 57 LA has more information.

Tenancy at Will

• A tenancy at will has no stated duration and can be terminated by either party at any time.

Tenancy at Sufferance

• Tenancy at sufferance exists when a tenant holds over at the end of a valid lease.
• It ends when the landlord chooses to evict the tenant (treating them as a trespasser) or to hold them to another term.
• See Part IV Land Registration Act for more information.
• Information on short-term leases is available in section 58, Land Act.
• Future leases have more information in section 61, Land Act.

Analogous/ Derivative Interests

• Charges are to be discussed later.

Licenses

Licenses are a personal permission granted by a land owner to another person.

• Licenses are used for occupation personally for consideration and may be for any duration.
• Unlike a lease, a license cannot be assigned.

Easements

• An easement is 'a convenience to be exercised by one land-owner over the land of a neighbour without participation in the profit of that land.
• The tenement to which is attached is dominant, and the tenement on which it is imposed is the servient tenement.'
• See sec. 136-138, Land Act for further information.

Profits a Prendre

• Profits a prendre permits the right to go to another's land to collect a product of the soil.
• This right confers the option to take part of the soil or produce of the land
• Profits are distinct from easements as they are essentially privileges without a profit.
• A profit may exist "in gross", meaning that the profit owner does not need to own adjoining or neighboring land.

Concurrent Ownership

• Concurrent ownership arises when two or more persons are entitled to the simultaneous enjoyment of land.
• Types of concurrent ownership include joint tenancy, tenancy in common, and tenancy by the entirety.
• Refer to Part IX of the Land Registration Act.

Joint Tenancy

• Joint Tenancy is a form of concurrent land ownership where two or more persons possess the land simultaneously.
• Joint Tenancy involved undivided interest in the land, so upon the death of one owner, the interest is transferred to the surviving owner/s.
• The principal features of joint tenancy include the 'right of survivorship (jus accrescendi)' and the 'four unities'.

Right of Survivorship

• Right of survivorship is the distinguishing feature of a joint tenancy.
• Upon the death of one joint tenant, their land interest passes to the other joint tenants via jus accrescendi until there is one surviving sole owner.
• Right of survivorship takes precedence over any disposition made by a joint tenant's will.
• The same principle applies if a joint tenant dies intestate.
• A joint tenancy cannot pass under a a will or intestacy.
• A joint tenant holds nothing independently, but holds the whole collectively; entitlement depends on survivorship.

The Four Unities

• The four unities of a joint tenancy include possession, interest, title, and time.
• Unity of possession gives each joint tenant a right to possess any part of the land as the others do.
• No joint tenant can claim exclusive ownership over any portion of the land.
• Unity of interest means the interest of each joint tenant has the same extent, nature and duration, as they hold one estate.
• Even with a joint tenant occupying the whole property, rents/profits are equally divided amongst all tenants.
• A joint tenancy cannot exist with a freeholder and a leaseholder.
• No joint tenancy exists between parties with similar but different duration interests, such as tenants of fee simple and fee tail.
• Legal acts like leasing or charging can only executed jointly by all joint tenants.
• Unity of title requires each joint tenant to claim their land title under the same act or document, like a conveyance.
• Unity of time requires the interest of each joint tenant to vest at the same time.
• The Land Act and Part IX of Land Registration Act 2012 expands on these sections.

Tenancy in Common

• Land Act describes tenancy in common as concurrent land ownership where two or more people simultaneously possess land.
• Each person holds an individual, undivided property interest with the right to alienate or transfer their interest.
• In this tenancy type, each tenant in common has a distinct, fixed share in property.

Tenancy in Common Characteristics

• There is no jus accrescendi, because each tenant's share is fixed and not affected by the death of fellow tenants.
• A tenant's interest passes under their will or intestacy.
• The only essential unity is unity of possession.

Tenancy by the Entirety

• Under common law, husband and wife were regarded as one.
• Tenancy by entirety was a special form of co-ownership between a husband and wife.
• Requirements for tenancy by the entirety include the four unities, the right of survivorship, and indestructibility/no severance, meaning that the tenancy cannot be terminated while the husband and wife are alive and married.

Condominiums

• Condominiums are a form of vertical land ownership that separates the ownership of air space from the land's surface ownership.
• Each owner holds a freehold title to an individual unit (usually in a multi-story building).
• Each owner possesses an undivided unit interest in the shared common space as a tenant in common with the other owners.

Specifics of Condominiums

• The 'individual interest' refers to a cube of airspace surrounded by the dwelling's walls, floor, and ceiling.
• The building, land below the building, recreational facilities, and parking lots will all be under joint tenancy.
• Kenya's Sectional Properties Act, Cap. 286A manages dividing a building into individual,proprietary units.
• It also establishes common property held by proprietors as tenants and offers guidelines and rules for unit use, management, and property.

Timeshare Arrangements

• A timeshare is a type of condominium.
• It is common in vacation spots, such as beach houses or condos.
• Ownership of a timeshare is usually divided into multiple periods (e.g., one week each year). During these periods, each owner maintains exclusive occupancy rights.