Exercise extra caution in buying property

Harold Ayodo

Among the New Year resolutions of some middle class families in Nairobi may be to own a home or at least initiate the process of acquiring one.

Most of them prefer to purchase plots in the outskirts of Nairobi where prices are pocket friendly. Some of the preferred areas include Kitengela, Kiserian, Ongata Rongai and Ngong.

However, after the recent demolition of lavish homes in Syokimau and other areas, prospective homeowners may be afraid to invest. The demolitions were so bad that the term operation bomoa nchi was coined in the social media to refer to the impromptu demolitions that left hundreds of families in the cold. Their argument is that purchasing plots, especially in the outskirts of Nairobi, has become a ‘trial and error’ exercise.

James Karanja and his wife Pauline sent an email on December 26 to say they were contemplating changing their New Year resolution.

"We wanted to have a place of our own this year, but the incessant demolitions sent chills down our spine," Pauline wrote.

Peter Musyoka, a reader, also sent an email inquiring on legal steps to take to cushion against purchasing questionable property.

"I have saved Sh1.5 million to buy a plot in Kiserian, but fear to be told later that I acquired the property illegally or irregularly," Musyoka wrote.

As much as prospective investors express fears of investing in houses and plots, some are to blame for overlooking legal procedures to acquire property. One of the best ways a buyer can cushion himself or herself from dubious property deals is to engage a registered advocate of the High Court of Kenya.

The law requires that registered lawyers undertake property transactions. Contracts relating to property must be in writing to be enforceable, according to the Law of Contract Act.

The lawyer is trained to act in the best interest of the client. They initiate correspondence with either the buyer or seller’s advocate, advise the client and eventually carry out the transaction.

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

The selling price and percentage of deposit required should also be availed to the lawyer. Other details include information on mortgage or charge on the property, if there is, the name of the lender and outstanding balance.

As part of the duties of the advocate for the buyer, he/she 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 similar information and further advice on finances, legal costs and possible future liability for taxes.

The buyer’s advocate must be vigilant to cushion against possible fraud lest he/she is rapped for professional negligence. The lawyer must carry out an official title search of the property at the Ministry of Lands. The lawyer should scrutinise the search certificate, approve the sale agreement and prepare the transfer.

The buyer’s lawyer should also obtain a rates clearance certificate, land rent certificate and consent of the Commissioner of Lands. The lawyer should also get consent from the land control board, town clerk and trustees and public corporation/authority where necessary.

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