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Illegal caveats can be costly

REAL ESTATE
By Harold Ayodo | October 13th 2016

 

I read an article on caveats in Home & Away recently with a lot of interest. Many people, myself included, have been victims of cartels and brokers who have guts to keep you away from your property by placing a caveat, especially when you fail to agree with them on “their terms”. Perhaps what people should know is the procedure we can follow to withdraw caveats that have been illegally placed on our properties. It is painful as some of the affected first-time investors like me always believe that the illegal cautions may be as a result of collusion between some rogue brokers or agents and officials at the Ministry of Lands.

Byron, Mombasa.

I found the article on the caveat by the broker interesting. My question is: What is the validity period in law for a caution placed on a piece of land before it becomes null and void?

Jonah, Kisumu.

I have been a victim of an agent who placed a caveat on my quarter acre piece of land and I have nowhere to turn to. What is the procedure for withdrawing the caveat to enable me transact on my property?

Milka, Nairobi.

A caveat may be legally withdrawn by the person who placed it or by a court order. According to the Land Registration Act, the registrar may serve a notice on the person who placed the caveat, warning that it would be removed after the period specified in the notice.

If the person who placed the caution does not raise any objection at the expiry of the period, the registrar may remove it.

However, if the cautioner objects to the removal of the caution, he or she must notify the registrar, in writing, of the objection within the time specified in the notice. The registrar will then give both parties an opportunity of being heard before issuing directions. When the registrar issues a directive to withdraw or remove a caveat, its registration is cancelled.

As previously mentioned in this column, any person who lodges or maintains a caution wrongfully can be sued for damages and compensation. Placing a wrongful caution that may lead a registered owner losing prospective clients would attract high damages and compensation.

Cautions or caveats are temporary restraints that are lodged with the Registrar of Lands by people forbidding the transactions.

Cautioners/caveators must prove that they are entitled to interests in the disputed property whose transfer they seek to forbid.

Cautioners can file suits in court seeking orders to force the sellers to sell them property as agreed in their sale agreements. Therefore, rogue brokers or agents should not be at liberty to hold at ransom investors who refuse to be arm-twisted into selling their property.

- The writer is an advocate of the High Court.

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