Rights to a neighbour’s property

By Harold Ayodo

Property law allows registered landowners to acquire legal rights on estates of their neighbours.

The servitudes — rights over property of another — make it possible for neighbours to use their land effectively without encroaching.

Servitudes, which include easements, profits and restrictive covenants, are necessary because property owners own or hold interests in adjoining land.

Easements are known in legal circles as classic rights over property of another person, mostly a neighbour.

An ordinary example of an easement is an agreement or arrangement to have a right of way (passage) through the land of a neighbour.

Property, which benefits from the passage, is called the dominant tenement while the one, which the easement is established is the servient tenement.

There must be two adjoining pieces of land owned by two different owners (dominant and servient tenement) for an easement to arise.

The rights of passage must be for the benefit of the dominant tenement and it cannot be acquired for any other purpose.

Easements are, however, limited rights — for the specific purpose for which the registered property owner grants.

restrictive covenants

The Registered Lands Act (RLA) Chapter 300 of the Laws of Kenya says easements must specify their periods, limitations or restrictions intended to affect its enjoyment.

There are also restrictive covenants, which are agreements between two registered landowners whereby one promises not to do some things on his land.

Covenants in law are generally agreements under seal, meaning the pact is embodied in a document and officially stamped with a seal.

The Constitution, which is the supreme law of the land, guarantees right of property but that right should not interfere with the rights of others.

A restrictive covenant can be reached at when say a neighbour keeps animals, which make noises that irritate others. Here, a covenant can be arrived at prohibiting the neighbour from raising the animals — the limitation is for the benefit of the adjoining piece of land.

Prof Smokin Wanjala says in his book Land Law and Disputes in Kenya, that a restrictive covenant binds parties that were not in the original bargain.

binding to new owners

If a landowner who entered the agreement sells his property, the new owner will still be bound by the covenant. This, according to the law, is because promise was for the benefit of the land and not the landowner.

The pledges must be tied to specific purposes that are recognised by law and aimed at benefiting the adjoining land.

The RLA (Section 95(3)) provides that restrictive covenants would only be binding after registration at the Registrar of Lands.

Restrictive covenants that bind subsequent owners of property may make the property difficult to sell, as most buyers may shy away.

The law also empowers the Government to impose restrictive covenants towards controlling uses of private owners.

profit rights

Profits, also known as profit prendre, are other rights over property of neighbours.

Profits are rights that allow someone to access the land of another and take something like soil, grass, fish or firewood for his/her own benefit.

Property lawyers will concur that profits differ from easements because the owner of the profit need not be owner of the adjoining property.

Section 97(1) of the RLA provides for the cancellation of easements, restrictive covenants and profits before the Registrar of Lands.

Persons affected by servitudes can make applications, in writing to the registrar upon proof that the period for the rights has expired.

The registrar may also extinguish the rights after proof that the event upon which it was intended to determine has occurred.

- The writer is a lawyer