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How to avoid falling victim to fake land deals

Explainers

Victims of land scammers have hit the headlines too often, with the most recent being residents of Mavoko, Machakos County.

The residents, who watched in despair as their houses were demolished one by one, are said to have obtained the land illegally.

According to the government, the 4,298-acre parcel of land belonged to the East African Portland Cement (EAPC) and was not open for sale.

In their statement, EAPC said they had consistently cautioned the public against unauthorised groups claiming to sell its land.

Additionally, the company says it had on several occasions issued public notices stating clearly that the land was not for sale.

However, the victims still maintain that they acquired the land legally and that they followed due process.

So what went wrong?

What is not clear though is where the chain broke as buyers were still issued with some documents even when the matter was still in court.

According to lawyer Alfred Ndambiri, land buyers who end up as victims of land scams tend to believe administrators and lawyers during the early stages of the land ownership process; who in most cases are accomplices the scam.

By failing to complete the whole process, they easily buy land and end up losing it later at a greater cost.

It is for this reason that Ndambiri advises on the right procedure to follow when acquiring land in the country.

The legal process

First, one must request a copy of the title deed and do due diligence through the office of the land registrar.

“If you want to acquire property and there is a broker involved, one has to first find out if the land is genuinely on sale,” says Ndambiri.

“To do that, go and scout the land then get a copy of the title and conduct an investigation by applying for a search in the office of land registrar.”

The search is supposed to give you details of the title deed that one can use to compare with the copy at hand.

To conduct a search, one is required to file a search application form and attach a copy of the title deed. The search is then required to be lodged at the registry and the requisite search Sh500 fee paid.

This will reveal the registered owner of the property, its size, and any encumbrances registered against the titles like prohibitions, court orders, and cautions.

According to Ndambiri, most buyers stop at the first step and go ahead to make payment, something that the fraudsters take advantage of.

Reiterating Ndambiri’s sentiments, Lawyer Wahome Thuku says: “When you fail to do due diligence, you may lose money if the land is not owned by the person who sold it to or it had other encumbrances.”

After the search, the buyer is then required to ask for a green card from the registrar so as to get the full history of the land and also check whether the land is included in the Report by the Commission of Inquiry on the Illegal and Irregularly Allocated Land, commonly known as the Ndung’u Land Report.

By doing this, it becomes easier to determine if the land has always been private property or was once owned by the government like the one in Mavoko.

After ascertaining that the land is legit and not State-owned, Ndambiri advises that the buyer proceed to look for a surveyor.

This will enable the buyer to identify the beacons that are supposed to be in place so as to confirm if the portion and subdivision of the land you are buying is equivalent to that on the map.

Once satisfied, the parties can go into a sale agreement.

According to Thuku, the agreement should be drafted by the seller’s advocate and reviewed by the buyer’s lawyer before signing.

“If satisfied, get a lawyer to review the agreement made by the seller. Sign it, and then embark on the payment ensuring the keeping of all the payment records,” says Thuku.

The sale agreement will set out the terms of sale including the name of the parties, the purchase price and mode of payment, the completion period which is usually 90 days and the completed documents to be furnished by the seller to enable registration of the transfer of property in favor of the purchaser.

At this point, the buyer is usually required to pay a ten per cent deposit which in most cases is issued to the seller’s lawyer as a stakehold.

After that, the land registrar will then appoint someone to find out what the value of the land is so as to enable them to determine the stamp duty.

At this point, the buyer can issue the remaining balance to the lawyer on agreed terms as they wait for the transfer process to be completed.

For the transfer process, the buyer advocate is the one who prepares the process and it is approved by the seller’s advocate.

For the process, one is required to produce the original title for the property, the transfer of property duly executed by the vendor/ seller (in triplicate), the Identity Card, Certificate of Registration of the seller and Pin Certificate, three passport-sized photographs of the seller and if the seller is a company, they should have photographs of two of its director and company secretary and their Pin Certificate.

The seller will also be required to provide a Land Rent Clearance certificate for the property, where the land is a leasehold from the Government, a Rates Clearance certificate for the property issued by the relevant local authority if applicable, and original receipts evidencing the payment of rates.

They will also have to issue consent to transfer the property issued by the Commissioner of land, the relevant land control board, or where the land is a leasehold from a local authority, the consent is issued by the Town Clerk of the relevant local authority.

The final process of land purchase is the registration of the transfer in favour of the purchaser.

Once the duly registered transfer has been released to the purchaser or his advocate, it is important to verify registration by conducting a search of the property.

Why people are scammed

Property lawyer SK Muturi says many people are ignorant of the sale process, making it easier for fraudsters.

“People deal with quacks and lawyers who do not do due diligence. Additionally, some buyers insist you have to pay the money before getting even a copy of the title, which is wrong.

“You end up paying and then realise it was a scam,” says Muturi.

He says due diligence should not be just a copy of a title deed. One can even ask around to be sure of what they are willing to purchase.

Further, Muturi says one should not buy a property because the seller has provided certificates and work permits.

Additionally, they should not buy property that has clearly been indicated is not for sale because by doing that, one cannot claim innocence.

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