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How to avoid cons and court battles when buying that land

REAL ESTATE
By Peter Theuri | Dec 30th 2021 | 6 min read
By Peter Theuri | December 30th 2021
REAL ESTATE
As a buyer, you need to know some of the common pitfalls to avoid and ways that can safeguard you when purchasing land lest you find yourself deep in endless court battles. [iStockphoto]

Kenyans who take time to carefully check the shelf-life of products before paying for them often fail to do the same when buying land.

The net effect is the loss of money to peerless cons, endless land disputes or owning land only on paper. It also leads to one buying land size he never expected to own.

Whether buyers are just ignorant or lack the enthusiasm to go through all the processes is debatable.

However, the process of buying land could be streamlined if buyers paid attention to the detail, processes and stayed faithful to it.

"The tedious and frustrating old process of purchasing a piece of land may have come to an end following the launch of the digital Ardhi Sasa system by the Ministry of Lands this year,” says Faith Mutio, a sales executive at Superior Homes Kenya.

“This forms part of a larger solution of buying land as one is required to follow due process of accessing the database of searches and legal documents such as the title deed.”

As a buyer, she notes, you need to know some of the common pitfalls to avoid and ways that can safeguard you when purchasing land lest you find yourself deep in endless court battles.

Many people have developed their piece of land - building a dream house, unaware that the property is illegally acquired, only to lose their hard-earned money to swindlers when the house is suddenly demolished.

Hence, due diligence is key for any potential land buyer in Kenya and globally, as it helps one get different aspects of a given property before any agreement is sealed.

Mutio advises on the processes that every potential landowner should follow ahead of owning a piece of land.

Conduct an official property search at the Land Registry

“This helps establish the rightful owner and whether there are any pending issues relating to the ownership, for instance, whether the property is charged to a financial institution and the duration of leases,” Mutio says.

Conducting an official search at the Land Registry closest to where the land is being sold is important. This step should be done before drafting an agreement for sale.

This process entails getting a certified copy of the land title from the seller which will be used in the application of an official land search. “This can either be done online or alternatively from the land registry offices near you and the results come out within a day or two,” Mutio says.

The results contain the name of the registered proprietor or owner of the land, any encumbrances over the land such as charges, registered caveats, cautions, or restrictions on the land, as well as other third party rights.

Such rights include existing easements and licences and also shows whether the property is a government lease while stating the remaining duration of the lease.

With this information, the prospective buyer of the land would be able to ascertain whether or not the prospective seller of the land is the actual owner of the land.

The other information on the land would guide the buyer in making an informed decision whether or not to proceed with the transaction.

Conduct a county search

“The second step after completing the official search entails conducting a search at the county government land registry offices,” says Mutio.

He says the county government registry, will upon paying the necessary fees, give the buyer information on whether or not land rates have been paid and are up to date and the registered user of the land.

It is important for the buyer to know whether or not rates have been cleared as a Rates Clearance Certificate will be required before the title is transferred to the buyer. It is the duty of the seller of the land to clear all rates.

Conducting a County Registry search will help the buyer ascertain the designation of the land and to examine whether the buyer’s intended exploitation of the land, conforms to its designated use.

Should it not conform to its designated use, the buyer will have the option to either withdraw from the transaction or prompt the seller to apply for a ‘change of user.’

“This will help to get information on whether land rates and land rents are duly paid. For land buyers, one may need a rates clearance certificate. One can merge this with utility verification to establish whether there are pending utility bills,” she says.

Physically view the site

This is probably where people mess most. While buying land, it is important to do a site visit as a way of verification that the property really exists. Some people have lost millions buying non-existent land, and a site visit should be made to avert this.

“This is done after obtaining the property maps, and the visit should include the buyer, the seller, and the surveyor to verify the dimensions. The three also check the beacons, and if they do not exist, they should be erected to avoid future disputes,” Mutio says.

Individual sellers might at times not facilitate site visits, so you might be required to make your own arrangements convenient to all stakeholders because as a buyer, it is important for you to fully understand the area while gauging your option.

It is important to tag along a second or third person to give you an independent opinion about the property, rather than depending solely on your opinion to make a decision. This could be your spouse or a real estate agent, apart from the seller.

"Believe what you see and not what you hear or read online. Only pay after you have confirmed that the land meets your expectations, has a clean title, and is owned by the person purporting to sell it,” advises Mutio.

 Thoroughly inspect the property, surroundings and neighbourhood

One of the major reasons for conducting a site visit is to ensure the information provided by the seller is true, including distance from the main road, water and electricity provision, social amenities among other issues. And while on a site visit, one should carry out a thorough inspection of the property and its surroundings.

"This is because you want to make sure that you get a property that meets your demands. There have been cases of property buyers being duped into buying land in areas far away from what they had been promised, thus the importance of thorough inspection,” says Mutio.

This kind of inspection can include checking the distance from where the land is located to the nearest schools, police station, shopping centre and administrative offices. Also, monitor the transport system and its availability at all times.

“Do not fall prey to land fraudsters who might sell land in an area with frequent landslides or corrosion. If it is a house, one will be forced to thoroughly check on the quality of construction and the material used,” she advises.

Also, take time to interact with some neighbours or other clients who have bought the property in the area. Most importantly, speak to your adjacent neighbours if possible, and also people who have lived in the area for a long. If possible, get information about the land from the area government representatives.

Ensure you engage a qualified surveyor

Land boundaries can sometimes lead to court battles with neighbours. This is why it is important to engage a qualified licenced land surveyor to ascertain the boundaries and the size of a piece of land.

“Request the surveyor to obtain the land’s survey map from the Survey’s office and check whether the land and its title number actually exist on the survey map. Survey maps are not easy to forge unlike title deeds, searches and other documents,” says Mutio.

For a house, one can seek the services of a qualified engineer to ascertain the structural soundness of the house. Once all the above steps have been successfully undertaken and the results prove that the transaction in place is clean, the buyer can then confidently proceed to make the relevant payments for the piece of land.

While digital processes to land or property ownership seem seamless, it is always advisable to take time and be cautious enough when buying land rather than rushing into a transaction and later suffering losses.  

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