Describe the Family Law In Kenya Research Assignment Paper (Research Paper Sample)

KENYATTA UNIVERSITY SCHOOL OF LAWMWANGI, GILLIAN NJERIL95s/14424/2015MWANZIA, CAROLINEL95s/14273/2015GITAU, HANNAH WAMBUIL95s/14305/2015MUCHINA, NELLYL95s/15128/2015NGENO, VICTOR CHERUIYOTL95s/16957/2015LPL 207: LAW OF PROPERTY IN LAND I:LECTURER: FRANCIS KABURUASSIGNMENT: LEASES IIGROUP V8 NOVEMBER 2016
Types of Leases
Introduction
This is where by property is conveyed from one party to another in which a payment is given in return. The parties involved are a lessor and lessee where by the lessor owns the property legally and the lessee uses the lessors property and pays for it under agreed terms and conditions. A tenancy is where one occupies the land of another or property and pays rent and lives under set terms and conditions. The parties involved in a tenancy are a landlord who is the owner of the property and a tenant who is the occupier of the property for a period of time and pays the landlord on the agreed upon term.
Types of Leases
Fixed term leases
This is where one rents out property for a specific time. This time can vary in months mostly and is agreed upon by the landlord and the tenant. Article 65 of our Kenyan constitution it states that for foreigners who might want to own land in Kenya a lease of not more than 99 years should be granted to them.[CITATION Tes12 \l 2057 (Shepperson 2012)] [The Kenyan Constitution.]
Short term Lease.
Sec 58 of the Land Act of KENYA defines this as a lease that is made for a two year term or less and it cannot be renewed. It can be made orally or in writing and it is not a registerable in land.[Land Law Act of Kenya.]
Land involved in a short term lease can be owned by the government and one cannot have permanent structures on the land as the leasehold cannot be renewed and the lessor can’t compensate the lessee when the land is taken back.
Future lease.
In sec 61(1) of the Lands Act a lease may be set for a future date that is not more than 21 years after the date of the execution of the lease. A future lease of a period of more than five years shall be of no effect unless and until it is registered. For a lease to be registered it must start more than three months from the registration date.[Kenya Land Act.]
Leases have three essential elements, this include:
Exclusive possession[CITATION Lan15 \l 2057 (Landlord Station 2015)]
This is the right of the lessee to use the premises without the interference of anyone else the land lord included. The landlord may however have access to the premises for a reasonable cause like inspection and at a reasonable time.in the case of Appah v Parncliffe Investments Ltd (1964). The land lord had reserved the rights to come into the premises whenever he wanted to hence the tenant did not have exclusive rights hence couldn’t press charge.
Determinate Term
This states that if the start of the execution of the lease is not mentioned it will be assumed to start immediately. This is however exceptional in an agreement of a future lease as it will be void unless it is stated when it should start. In case the landlord wants to lease out land with an indefinite period, the lease will be declared invalid like in the case of Lace v Chantler(1944)
Terms less than that of grantor
An owner in fee simple can be able to lease out property at any duration he wishes. A tenant is allowed to sub lease as long as the sub lease is shorter than the original and there can be only one fee simple per piece of land.
Periodic Tenancy
This is a tenancy that is consecutive and it ends when the tenant notifies the landlord that he or she is no longer interested in the leasehold. A periodic tenancy can run from week to week, month to month or year to year. When a fixed term tenancy expires and the tenant doesn’t move out and still pays rent, the tenant and landlord embark on a periodic tenancy and they follow the same terms and conditions that were used in the fixed term tenancy.[CITATION Tes12 \l 1033 (Shepperson 2012)]
If an act of parliament forms a tenancy it will be a statutory periodic tenancy .in such tenancies it is very hard to evict a tenant because the statute says so. This will however be contractual between the parties.
Section 57(1) (a) of the Land Act in Kenya it defines a periodic lease as a lease that is not specified and no notice can be given to terminate the tenancy. It states that the periodic lease for agricultural land is six months this is in Sec 57 (1) (b). A periodic tenancy may be terminated by either party giving notice to the other but the period of tenancy must be complete and it shouldn’t expire on the day that rent is payable.[Land Law Act of Kenya]
Tenancy at Sufferance.
This is where by the tenant refuses to vacate the premises after the tenancy period is over hence he is occupation of the premises after the original agreement has expired without the landlords consent but the land lord hasn’t issued the eviction notice yet hence the tenant continues to pay rent as usual. Such a tenant is referred to as a holdover tenant. If the landlord issue a notice of vacation after the tenancy period expires a lawful suit shall be pressed against the tenant.[Legal-dictionary]
Once a tenant is a tenant of sufferance the land lord has an option of renewing the tenancy but under a new term. The other option a landlord has is to give the tenant an eviction notice or file for eviction in a court of law. This is found in Sec 60 of the Lands Act it states that is a lessee continues to occupy the land after the lease has expired, all the terms and conditions that were set in the previous agreement continue to be in use until the lessee is no longer in possession of the land. Sec 60(2) states that just because a lessor accepts rent from a lessee who’s period is expired it does not mean that the lessor has consented to the lessee remaining on the property but if the lessor continues to accept payment from the lessee for more than two months a month to month periodic lease shall come to force.[CITATION Lan15 \l 1033 (Landlord Station 2015)] [Lands Act of Kenya.]
Tenancy at will
This type of lease can be terminated at any time by either party, it is unspecific in terms of payment and can exist without a contract or lease. The fact that it can be terminated without notice is what keeps it different from other types of leases but a 30 day notice should be issued in case of eviction or moving out in order to avoid inconveniences. In this type of tenancy one cannot transfer tenancy from one person to another.This type of tenancy if provided for those parties that wants to change the terms of condition at any time without having to breach the contract. The tenant must however pay rent and follow the agreed terms and condition payment of damages being inclusive except in the case of wear and tear.[CITATION Blo13 \l 1033 (Blount 2013)]
In this case the tenant can acquire permission from the landlord to extend his or her stay on the property after the expiry of the agreed upon date hence this is a major difference between a tenant of sufferance and a tenant at will.
Tenancies also have elements which include:
* Parties
There must be a land lord and a tenant for a tenancy to be in order for a tenancy to take place.
* Property
The property must be on land or affixed to land like an apartment on a fifth floor, yes, it’s in the air but it’s affixed to land.
* Term
This is the length of a tenancy as agreed upon by the land lord and the tenant.
Duties and obligations of the Lessee
Duty to allow landlord on premise
A statute also implied the rights to entry for repair by the landlord. A landlord of a residential accommodation let on a short lease who’s has an implied repairing obligation has a statutory right to enter the premises to view their condition and state of repair. This statutory authority is to just view and state the repair areas but the landlord does not rights to just decided one day to go and do repair without informing the tenant of the action. This authority does not allow for such action. First the landlord must take an action of informing the tenant of the act so that the tenant can arrange together with the landlord on how to go about.
Obligation to repair leased premises and furniture
A tenant ha...