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Sunday 19 February, 2017

Easements and Right-of-way

Wayleaves

A wayleave is a right of way (ROW) over the land of another. This ROW is for carrying sewer, drain, power line or pipeline into, through, over or under any lands but in so doing may interfere with the existing buildings. In Kenya the Wayleave Act Cap 292 and Energy Act of 2006 allow for ROW of transmission lines.

A wayleave is registrable as an easement i.e. can be specifically described and defined. Wayleaves last for the life of the transmission line normally in perpetuity. Due to the nature of transmission lines, the consideration is normally a capital compensation value made to the property owner.

Easements

An easement is a right amounting to an interest allowing for restriction of another’s land. The owner of the land accepts the holder of the easement to enjoy the ROW by omitting to do some defined act or allowing some defined act to be effected on his land.
Easements may be acquired by grant express or implied, statute or adverse possession under the limitations of actions act.

Although there are exceptions, we generally purchase easements for transmission lines and purchase fee simple property for substations. An easement conveys limited rights to KETRACO for a specified use, while property owners retain the land for other uses. See our section on acceptable uses and maintenance of rights of way.

Reaching agreements

Our first contact with property owners is usually when one of our land agents asks for permission to survey property. Through surveys, we learn about geographic conditions and planned improvements to the land. We profile the topography to aid in designing a line that minimizes impacts. After surveying, we provide an acquisition document that sets down the terms of the agreement and an offer, based on the fair market value of the property. A survey and appraisal are needed before an offer can be made. We then negotiate in good faith with land owners to reach a settlement for the property rights needed. Nearly all of our land parcels and easements are obtained through mutual agreement with land owners. If an owner refuses to negotiate or an agreement cannot be reached, we file a condemnation action in the Superior Court of the county where the property is located. The use of compulsory acquisition is a last resort. On average, less than 4 percent of our land transactions are heard in court.

What are they?

With some exceptions, these areas – corridors of about 25 to 180 feet – are private property where electric utilities have purchased easements, or rights, to use the property for specified purposes. Rights of way are kept clear of vegetation and other obstructions that could interfere with the construction, operation or maintenance of lines. Prior to making changes on land where there is an easement, property owners should check to ensure the land use is compatible with electric service. Land use issues are complex because maintenance and repair crews must have access to rights of way to do their work. Sufficient clearances from power lines – allowing for sag when lines are carrying maximum current -- must be maintained for operational and safety reasons. Guy wires, anchors and underground facilities must also be protected. These precautions reduce the risk of outages and blackouts and ensure quicker restoration of power following an outage.


Acceptable uses

As long as minimum clearances from poles and guy wires are maintained, most rights of way can be used for yards, gardens, pastures and farming. And with a written agreement with the affected utility, the land could possibly be used for recreational fields, streets, roads, driveways, parking lots, lakes, ponds, fences, drainage ditches, fills and grading. Prohibited uses generally include pools, aircraft runways and taxiways, permanent structures (including manufactured homes), septic tanks, dumps, junkyards, wells, signs taller than 10 feet, fueling or fuel storage facilities, garbage and recycling receptacles and outdoor lighting not owned by an electric utility. Lines and equipment of other utilities – including sewer, water, gas, electric distribution, telephone, cable TV and railroads – may be permitted under certain circumstances, and usually require a separate easement from the other utility. These are only examples. Please check with KETRACO to make sure your plans comply with the terms of your easement.

Application gets plans approved

To find out if a planned use of a right of way is acceptable, KETRACO offers a simple right-of-way application. Just download the form, answering the questions and e-mail or mail it back. With this information, an agreement can be quickly drawn up in about 30 to 45 days.

Who to contact

For questions about rights of way, please e-mail info@ketraco.co.ke or call 4956000.

Permanent Easements

The alternative to a wayleave is an easement (also known as a Deed of Grant of easement).
This allows grantors to opt for a one-off capital sum, giving us the rights to keep our equipment in situ in perpetuity and to have access to the land for inspecting, maintaining, replacing or removing the equipment.

We prefer to enter into easements where possible for overhead lines, and always where underground cables are installed.

We recommend landowners and occupiers employ suitably qualified professional land agents and valuers to negotiate claims on their behalf. Landowners will also require a solicitor to complete the Easement. Reasonable solicitor's fees are paid upon completion of the legal deed. In addition reasonable Agents fees are paid upon completion of a Deed of Grant of Easement or settlement of a claim for compensation which will be paid under the appropriate fee scale.