Acquiring rights over other's property

By Franco Odhiambo

Many land and property owners are unable to make proper and maximum use of these assets owing to various factors such as complete inaccessibility, poor accessibility or blocked natural light.

Numerous cases exist of people whose parcels of land are completely landlocked due to technical errors committed during land adjudication and consolidation process. Such cases may include, among others, failure to provide proper access roads.

An example is a sad case where in one particular land registration section, properties bordering the 60 metres railway reserve land were not provided with access roads on the wrong assumption that the railway reserve could act as access road. The affected land owners risked being sued for trespass as Kenya railways land is a protected property.

Unplanned developments

Some properties are hard to access by vehicles due to poor topography. Cases also exist of people taking long routes to access vital services such as schools, hospitals or shopping centers due to poor planning while a shorter route could have easily been availed.

In urban areas, due to uncontrolled development, uniformity in houses is lacking leading to different building styles, which block some premises from receiving adequate light or proper flow of air. People facing some of the above problems can create easements with neighbouring landowners.

Easements

What are easements? An easement is a right that can be acquired over land belonging to another, allowing one to use it in a particular manner for his/her own benefit without possessing it or restricted use. An easement that gives right to use another’s property for a specific purpose is known as affirmative easement, for instance, right of way, right of light among others.

An easement that restricts or prevents an otherwise lawful activity on another’s property, is known as negative easement. For instance, one landowner can restrict another from planting trees that block his or her view of the main road.

Easements can either be public or private. Public easements are for public use over a parcel of land owned by an individual while private individuals hold private easements. Easements can benefit either the land or the landowner.

Easements that benefit the land are known as appurtenant easements and runs with the land and are therefore, transferable.

Gross easements benefit an individual or legal entity rather than the land and generally are not transferable. There are some easements with no fixed location, route, method or limit to the right of way. These are known as floating easements and they can either be public, private, appurtenant or gross easements.

The writer is a survey and mapping professional