By Harold Ayodo

Some wealthy investors in real estate dish out property as gifts to their loved ones during festive seasons.This Christmas is not an exception as lawyers are busy transacting houses and plots bought or to be transferred as gifts to loved ones.

Majority of the beneficiaries of the lucrative gifts often include spouses, children, lovers, fiancés or secret lovers.According to property laws, it is legal to give as a gift a house or plot out of your love and affection for the donee (beneficiary).

It is a general principle of law that acceptance of a gift must be made during the lifetime of the donor (giver).A gift in real estate must be registered and signed by or on behalf of the donor and attested by at least two witnesses.

Ownership

If the house or plot is registered, legal procedures — filing transfer forms and payment of stamp duty — must be followed for the gift to be effective.Legally, a spouse can keep the gift of a house or plot as his or her personal property as long as it is registered under his or her name.

Similar principles of ownership apply to any beneficiary above the age of 18. Trustees can manage the property on behalf of children until they turn 18.

But don’t over-celebrate the gifts as some of the donors renege on promises made when the relationships turn sour.And many of such disagreements of property running into millions of shillings are increasingly finding their way to the High Court.

However, the gift givers often lose the property disputes especially if the beneficiary registered the property under his or her name.Take the recent case before the High Court where Justice Luka Kimaru stopped a man from reclaiming a property he bought and registered under the name of his ex-lover.

According to the case, the man had fathered two children with the wife of another man and bought her the multi-million shilling property.Justice Kimaru ruled that although the beneficiary was someone else’s wife, the gift bought and registered under her name by her lover was her legal property!

“At the time the property was transferred, the two former lovers were in no relationship recognised in law other than being parents of two children,” Justice Kimaru ruled.

The judge said a gift of registered property becomes effective with delivery of the transfer and cannot be recalled even if the receiver has not registered as a proprietor.

He said there was no evidence to prove claims by the man that he registered the property to her as a trustee to the two children.Justice Kimaru ordered that once the property was transferred to the woman’s name, she was free to deal with it the way she liked, including selling it to a third party.

Some cunning property owners dupe their lovers with giving them property as gifts complete with fake title deeds.But the easiest way to confirm whether the property you have been spoiled with this Christmas is legal is through performing an official search at the Ministry of Lands.

Donors (givers of gifts) and donees (beneficiaries) this Christmas season must be wary of property laws on the same to avoid disputes.According to the newly enacted Land Registration Act (2012), property gifts can be transferred from donor to donee by filing a form prescribed by the registrar.

According to Section 26 of the Land Registration Act, the certificate of title issued by the registrar after registration means the donee is the new legal owner.

The registrar will issue a certified copy of the title deed signed by him or her complete with an official seal.The gift may only be cancelled if it is proved that it was acquired fraudulently or the title deed was acquired illegally, un-procedurally or through corruption.

The writer is an advocate of the High Court of Kenya.

Business
Premium Burdened Kenyans walk into Easter weekend broke
Business
Premium Water PS Korir put on the spot over Sh14m dam land
Business
Premium Looming crisis as top lenders stare at Sh500b in bad loans
Business
Premium Ruto's food security hopes facing storm amid fake fertiliser scam