The law anticipates that it may be necessary to enforce certain restraints on a given property to limit the transactions or dealings against a given property’s file at the Land Registry. There may be varied reasons for enforcing such restraints and the varying reasons dictate the form of restraints to be applied.
What is a Restriction and when is it applicable?
A restriction is a registered interest in land restraining the building on, use or other enjoyment of that land for the benefit of the land’s owner or neighbouring parcel of land. This restrain is applicable when such needs arise pending the occurrence of an event or the making of a further order.
Thus, for the prevention of any fraud or improper dealing or for any other sufficient cause, the Registrar may, either with or without the application of any person interested in the land, lease or charge make an order (restriction) prohibiting or restricting dealing with any particular land, lease or charge.
Who has the authority and capacity to apply for a Restriction?
Any person interested in the land, lease or charge in question, may make an application to the Registrar for a Restriction.
What is an Inhibition and when is it applicable?
An inhibition is an order prohibiting for a particular time, or until the occurrence of a particular event, or generally until a further order, the registration of any dealing with any land, lease, or charge.
An Inhibition is applicable when it is necessary to ensure that any instrument that is inconsistent with the inhibition is not to be registered
Who has the authority and capacity to apply for an inhibition?
The court has power to inhibit registered dealings
What is a Caution and when is it applicable?
A caution is a restrain on land so as to:
- forbid the registration of dispositions and the making of entries; or
- forbid the registration of dispositions and the making of entries to the
extent expressed in the caution.
Who has the authority to apply for a Caution?
A person who has the authority and capacity to apply for a Caution is one who:
- claims the right, whether contractual or otherwise, to obtain an interest in any land, lease or charge, capable of creation by an instrument registrable under this Act;
- is entitled to a license; or
- has presented a bankruptcy petition against the proprietor of any registered land, lease or charge.
How is a registered owner notified that a restriction or caution has been placed on his or her property?
The Registrar gives notice, in writing, of a restriction/ caution to the proprietor whose property is affected by the restriction/ caution.
How does a registered owner proceed to seek removal of a restriction or caution that has been erroneously registered or registered without sufficient justification?
A registered owner affected by a restriction or caution erroneously registered or registered without sufficient justification may make an application, and upon notice to the Registrar, the court may order the restriction or caution to be removed, varied, or other order as it deems fit, and may make an order as to costs.
Authors:
Ms. Faith Gituma, a Legal Assistant/Trainee with the Firm and Mr. K. Njoroge Ng’ang’a, Partner and Head of the Corporate Commercial and Real Estate Department.
This note does not constitute legal advice, neither is it a Legal Opinion. For more information on sectional properties and the now novel concept on sectional titles or any further queries on commercial or real estate matters, email us on info@kn-partners.com or telephone us on +254 20 2000431/+254717554430