Do you have a genuine title deed?

By Franco Odhiambo

The ultimate aim of most Kenyans is to own land for agricultural purposes in rural areas or commercial and residential plot in urban areas.

In both cases, properties fronting major roads or permanent rivers are usually in high demand due to accessibility, availability of water, telephone lines, electricity and other essential services.

Many have, therefore, saved money or taken loans from saccos and other financial institutions for the purpose of acquiring prime properties.

They then strive to secure title deeds or certificate of lease after which they develop those properties with an assured return for the investments. Their safety lies in the fact that they hold genuine title deeds.

A title deed is a document signed, sealed and showing right of ownership to property. But many Kenyans might be holding faulty or wrong title deeds for the property they possess.

Recently demolition of business and residential properties was carried out along Thika Road for the construction and expansion of the super highway to ease traffic congestion despite the fact that some proprietors had title deeds and certificate of leases.

Those with proper land ownership documents will be compensated under the Land Acquisition Act but those holding the fake deeds or certificate of leases cannot claim compensation.

Faulty title deeds

Cases of people holding faulty or wrong land ownership documents are numerous in areas where land was formally bought by land investment companies and cooperative societies.

This is brought about by clerical or typographical errors, technical errors, proprietors giving conflicting information and land company directors giving scant information about their members when land document are being prepared.

The most common errors or mistakes, which lead to wrong or faulty title deeds are: -

(i) Occupying the wrong property on the ground while holding the proper documents.

(ii) Occupying the right property and holding the wrong documents.

(iii) Details in the title deed and the land register do not match.

(iv) The survey map and the ground situation not matching.

(v) The survey map, which supports registration of land not corresponding with the land register

(vi) The proprietor’s personal details and address as appears in the identity card or passport is different from the one in the land register.

The above scenario has led to a situation where the registered proprietor cannot transact on his /her property due to conflicting information, a valuer valuating the wrong property, auctioneer auctioning the wrong property or a buyer, purchasing the wrong property.

It is, therefore, important for property owners to find out if they are holding the correct, wrong, faulty or fake title deeds and land certificates by doing the following procedure: -

Searches

It is important to note that a title deed or certificate of lease is merely evidence of what was shown in the register at the time it was issued. It is the register and the entries, which are kept in the Land Registry, which matters. The register is the official record of land. To find out the current status of land in the register, a search is done. A search is the official copy of the register.

Rectification

If the search reveals any discrepancies, rectification may be done by the registrar on the register or any document presented for registration in the following circumstances:-

(i) In formal matters where errors or omissions not materially affecting the interest of any proprietor.

(ii) By consent of all persons interested.

(iii) Upon resurvey, dimensions or areas shown in the register found to be incorrect.

(iv) Upon application of the proprietor and upon proof of the change of the name or address of any proprietor, make an entry in the register to record the change.

The court can also order rectification of the register by cancellation or amendment where it is satisfied that registration is through fraud or mistake.

Survey maps

Survey maps, which might be in the form of a Deed Plan or Registry Index Maps are the ones, which support the registration of land. It is important for all property owners to purchase and peruse survey maps to make sure the property they own is reflected in the maps. The map should correspond as much as possible to the ground situation depending on the type of survey carried out and the land registration statute applied.

In case of mismatch, the proprietor who needs alteration can request the Land Registrar and the Director of Survey to correct the lines or position of any boundary shown in the map with agreement of the affected parties. If the parcels are numbered erroneously, the same procedure is applied.

In case of a new subdivision then the amendment of the map should be carried out to reflect the new parcel numbers in order to obtain registration. The survey maps are important in that they are a prerequisite for any development like valuation purposes, supply for electricity or piped water.

Physical plans

These are plans showing the current status of land use like residential, industrial, commercial or agricultural and their zones. They also indicate proposed development like residential estates, new roads or proposed road expansion. They can exist as development plan or part development plan.

In areas of controlled development, a scheme plan must be prepared for any new development and must be approved by the various authorities including local authority, roads department, and public health department among others.

It is, therefore, important for any property owner to consult the physical development plan before commencing any development to avoid developing in the proposed electric powering, sewer line or road reserve.

The writer is a Survey and Mapping Professional.