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Buying off-plan: Why a lawyer is important

By Harold Ayodo | Updated Thu, March 16th 2017 at 00:00 GMT +3
An architectural design of a development. When buying a house off-plan, caution and following legal procedures are crucial. [PHOTO: FILE/STANDARD]

The dream of many middle class families is to buy a house towards saving on the ever increasing monthly rent in Nairobi. Others prefer purchasing plots in the outskirts of Nairobi and other major towns where the prices are pocket friendly.

For instance, Kitengela, Kiserian, Ongata Rongai and Ngong are among areas where most tenants in the capital city desire to own plots.

However, investment in real estate seem to have several uncertainties, for instance, the recent case where several middle income earners lost money to a bogus scheme to buy houses off-plan. Nearly five years ago, the State broke hearts by flattening lavish homes in Syokimau for allegedly constructing on grabbed land.

Today, the common argument is purchasing houses off plan and plots — especially in the outskirts of Nairobi — have become a ‘trial and error’.

Much as prospective investors express fears of investing in houses and plots, some are to blame for overlooking legal procedures when acquiring property. Caution and following legal procedures would be helpful to prospective investors in real estate.

One of the best ways a buyer can cushion himself or herself from dubious property deals is to engage a registered lawyer. And contracts relating to property must be in writing to be enforceable, according to the Law of Contract Act.

When selling property, it is important to furnish your lawyer with the full names of the buyer, and the names of the advocates and estate agents involved.

Particulars of the property like the physical address and whether it is either freehold or leasehold are important.

The selling price and possible percentage of deposit required or whether it has been paid and if so, to whom.

Others are details of any mortgage or charge of the property – if there is – the name of the lender and outstanding balance.

Another important detail is the expected date of completion of payment especially in cases where purchase is by installments.

The lawyer should prepare the sale agreement, title documents and approve the transfer.

Others are procuring execution of the conveyance (transfer of property), attesting documents, receiving and accounting for proceeds of the sale to his/her client.

The advocate for the buyer will require the similar information and further advice on finances, legal costs and possible future liability for taxes.

As a purchaser, your advocate must be vigilant to cushion you from possible fraud lest he or she is wrapped for professional negligence.

The lawyer must carry out an official title search of the property at the Ministry of Lands towards ascertaining the legal owner.

The lawyer should scrutinise the search certificate issued by the Ministry, approve the sale agreement and prepare the transfer.

The advocate will also stamp the legal documents and forward them for registration as required.

It is also the duty of your lawyer to obtain and pay the purchase money to the advocate representing the seller of the property.

Further duties of the lawyer include obtaining a rates clearance certificate, land rent certificate and consent of the Commissioner of Lands.

Others are obtaining consent from the land control board, town clerk and trustees, public corporation/authority where necessary.

—The writer is an advocate of the High Court.

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