FORMALITIES IN

DISPOSITON OF LAND

Conveyancing law
Lecture 2
E.MULWA
 OBJECTIVES
• We shall examine the following:
1. The two phases of land disposition/transfer
2. The formalities of writing and registration
3. Completion of contract
4. Effect of registration
5. Land registry process.
•
INTRODUCTION
Dispositions in land are constrained by a number of formalities that must be satisfied.
• Traditional justifications for formality rules in the context of real property are said to
protect original parties making a disposition of ownership or an interest in land. Unlike
personal property, real property has the characteristic of durability, land is said to be
permanent and thus rights created therein have a degree of permanence and stability.
In this respect a property transaction involving land is treated as more important than
any other type of property transaction.
• The second reason for formality rules in real property law is that they protect third
parties. An efficient system of conveyancing is dependent on the ability of third
parties to establish exactly what they are purchasing, what interests already exist in the
land and how that land is restricted in its use in the future.
 INTRODUCTION
• Dispositions in land are normally conducted in two phases;
• a) Phase one involves the contract for sale of land
• b) Phase two involves the completion of the contract commonly known as the
conveyancing stage. It is the stage that which the transfer of the interest in land is
effected.
• In a nutshell, when the preliminary negotiations between the prospective vendor
and the purchaser have taken place, the parties enter into a formal contract to
execute in favour of the purchaser a conveyance of the legal estate in the land to be
sold.
 Contract for sale of land
• Contract for sale of land.
• Just like any other contract. However, there are other prerequisites:
• a. There must be an offer.
• b. There must be acceptance of the offer.
• c. There must be consideration
• d. The parties must have the intention to create a legal relationship.
• e. The parties must have contractual capacity.
• Contract of sale of land is subject to certain stringent provisions. It is not like any other contract, say for
instance for sale of chattels. Unlike other contracts of sale, a contract for sale of land must be in writing.
 Formality of WRITING
• Unlike other contracts of sale, this contract must be in writing. To restrict change of mind by the
parties. Sec 3(3) of the Contract Act states that a memorandum of disposition of land must be in
writing. Prior to 2003 a party could enforce an unwritten sale agreement based on part performance.
The courts would consider unwritten sale agreements based on this. In 2003, an amendment was
then made to the act which stated as follows: that no suit shall be brought upon a contract for the
disposition of an interest in land unless;
• a) The contract upon which the suit is based; is in writing and signed by the parties thereto.
• b) The signature of each party signing has been attested by a witness who is present when the
contract was signed by such party.
• But there is an exception to this section that it does not apply to a contract made by way of public
auction where a resulting trust is created or a constructive trust. The requirement for writing under
this amendment is therefore absolute.
• Under Section 44(1) of the LRA every instrument effecting any disposition under the Act shall be
executed by each of the parties consenting to it, in accordance with the provisions of this section.
And this is by of appending a person’s signature on it or affixing the thumbprint or other mark as
evidence of personal acceptance of that instrument.
 WRITING CONT
• The formality of writing serves three purposes: Evidentiary, Protective and Forensic.
1. The formality of writing performs the forensic (of or used in court of law) function in providing simple yet
conclusive evidence of the fact of agreement. The Statute of Frauds 1677 expressly provided that the
requirement of writing was intended to guard against the fraud.
2. Formality of writing also performs a useful evidentiary function in encouraging precision and recording the
result for posterity. Writing helps to avoid disputes as to what interest has been or is intended to be conveyed.
Remember too that land can generate an array of interests from its original form in the freehold estate.
3. Thirdly, it is argued that the formality of writing performs the protective function of giving parties a chance to
reflect and think on the deal before executing a binding contract that they may wish so shortly before the ink is dry
to renege on. It is stated that if the agreement was to be oral there would be no time for reflection on the deal per
se. This function has been reinforced further by the requirement of “independent legal advise” to be given by a
qualified conveyance. Under The Evidence Act there are some agreements that must be in writing.
 Writing cont
• Having established that contracts for the sale of land must be in writing, it would be
prudent to appreciate here that sometimes the contract might be broken.
• REMEDIES
• 1. Rescission- you can rescind the agreement on the grounds of fraud, if there is
breach of the contract (either of time or payment)
• 2. Specific performance. For you to seek this remedy you must have performed your
part of the agreement.
• 3. Damages.
 Completion of contract/conveyancing stage
• This is done after all the parties have performed their part. This stage comprises of the
following;
• a) Investigation of the title by carrying out a search at the Lands registry or by doing ground
work.
• b) Searches to establish the legal ownership of the land and to find out if there are any
encumbrances.
• c) Preparation of any conveyancing documents approving and engrossing.
• d) Execution, attestation and verification of the documents.
• e) Registration of the documents to transfer either ownership or security or even discharge
an interest.
 FORMALITY OF REGISTRATION
• Formality of Registration in Conveyancing
• Conveyancing is complete only once registration is effected. · Registration is the keeping of records of
land transactions in the Lands Register
• What is registered is usually the title or ownership to land and any instrument dealing with land or the
disposal thereof.
• The purpose of Registration · enabling the Government to keep track of user, easier collection of
revenue , simplifying dealings in land registration , avail certainty and security of title or tenure ,
Reduction of unnecessary litigation in matters relating to land, · Prevention of re-fragmentation of
land, Security of tenure; A registered proprietor acquires an indefeasible tile against the whole world ;
owner has a right to indemnity from the govt. LRA 81-84, Efficient administration and facilitation of the
loan system , Prevention of concealed dealings in land:
 Registration cont

• What is registered? Title (land) and interest (servitudes, encumbrances,

quasi-encumbrances). The latter includes charges, leases, easements, profits,
restrictive agreements or covenants (see Tulk –v-s Moxhay [1843-60] All E. R
9). The former involves the estates namely fee-simple, freeholds and
leaseholds which also rank as limited interests.
• Upon registration of the land or conveyance the registered proprietor
acquires an indefeasible title against the whole world [cf. Sections 23, 24 RTA
and Sections 143 through 148 RLA]. Registration is effected at the relevant
Lands Registries
• Effect of Registration
registration
• Section 24 of the LRA the registration of a person as the proprietor of land shall vest
in that person the absolute ownership of that land together with all rights and
privileges belonging or appurtenant thereto · section 25 of the LRA The rights of a
proprietor, whether acquired on first registration or subsequently for valuable
consideration or by an order of court, shall not be liable to be defeated except as
provided under the Act · subject to (a) to the leases, charges and other encumbrances
and to the conditions and restrictions, if any, shown in the register; and (b) Overriding
interest (S. 28 LRA)
• The effect of registration is to vest in the person the rights envisaged in the contract
between the parties. Therefore if a sale transaction is registered and a transfer is
effected, the purchaser after registration becomes vested with the rights of ownership.
The same applies to transactions involving charges, leases and mortgages.
 registration
• The Effect of Non-registration
• 1. No passing of interest- Non-registration means simply that there is no interest
passed at least in rem.
• 2. Non-registration of particular documents, which ought to be registered by statute
as a matter of course or compulsory requirement, makes such a document invalid.
See: Section 32 and 40 RLA on the compulsory registration of leases for more than
2 years. The document is not void but is invalid i.e. it works as between the two
parties (interpartes) but not 3rd parties.
 Registration cont
• The consequences of failing to register registrable instruments vary from act to act.
Some statutes provide that failure to register renders the transaction void while
others provide that failure to register renders the document inadmissible in evidence.
• A lot of difficulty arises when you’re dealing with registrable and un-registrable
interests. This is so because the later must also be recognized although they are not
registered.
• The other challenge arises when you are dealing with customary law holdings. The
problem is more when it comes to leases, there could be a lease that is not registered
but one party is already in occupation and is performing its part.
 Process at the registry
• 1.Filled Valuation Forms lodged with the Collector of Stamp Duty for purposes of
valuation
• Particulars of property Form filled by conveyancer
• Valuation for Stamp Duty Requisition Form filled by the Collector and sent to Chief
Government Valuer for valuation. This is only applicable where the document is a
transfer or Deed of Conveyance
• 2. Document stamped and duty paid at the Banks (KCB/NBK )then document
lodged for registration
• 3. Document presented in duplicate together with all relevant requisite documents e.g.
original of the government’s valuation report, consent, clearance certificate, original
title etc. Fill out application for registration in quadruplicate. Pay Kshs 500 for
registration.
 Process cont
• 4. Upon Presentation of document and a day book number given entered into a register and date and time of
presentation endorsed on the document for purposes of priority.
• · RLA the Registry keeps the original and releases the counterparts
• Sections on priority:- LTA - S.60, GLA - S.104, RTA - S.28, ITPA - S.78, RLA - S.42
• Priority is. given by the date of registration which is the same as the date on which the document is presented for
registration.
• Priority is NOT given by the date of the document (i.e. the date which parties have inserted in the document or the date
of execution of the document).
• Rule 8 of the Land Registration Rules 2017 states that for the purposes of priority, the time of presentation of
instruments as noted in the presentation book shall be the time of registration and the serial number assigned to the
application or instrument shall determine the priority of the instruments.
 Process cont
• 5. The Document taken to audit and Government Auditor ascertain stamp/duty, taxes-rent, rates,
have been paid.
• 6.. Registration proper commences with the Registry- in charge of marking the documents for action
in a register known as the ‘A‘ book
• · verification of document by an officer in the registry: detection of any defects
• · Inspection of the title by an officer to ensure title is clear and registration can proceed
• · Entry of particulars of interest being acquired
• 7. Document is then passed to relevant Registrar for execution and ultimate registration
• · Registrar vets it and signs in approval or rejection.
• 8. In epilogue:
• · Document is photocopied (except RLA documents)
• · Sealed with Land Registry‘s Seal (except GLA documents)
• · Released to owner. If RTA,RDA,GLA or LTA the Registry keeps a photocopy
 NEXT WEEK
• PRECONTRACT PERIOD AND INVESTIGATION OF TITLE