Things to consider before paying for land
By Emmanuel Ndirangu
| September 9th 2021
The desire to own land or a home is generally considered a life goal. Whether the land targeted is in the city suburbs or up-country, it is essential for one to undertake a due diligence exercise – basically an investigation of title, before committing any cash.
The due diligence exercise can be done by the purchaser in person or through an experienced lawyer who will ensure all the latent details of the land have been disclosed.
One of the initial steps in the due diligence process is to first enquire from the vendor why they want to dispose of the land. The response from the seller can be critical in deciding whether or not you want to purchase the land.
The late James Madison once asserted that ‘if this world consists of angels, no government establishment would be necessary.’ I echo these sentiments which imply that if men were honest, no legislation or regulation would be significant, and the need for due diligence before transactions would be of no real value.
Land being an expensive commodity and an emotive issue in Kenya, due diligence is a must-do. In this verification exercise, certain processes should be followed. They include:
Search in the Land Registry
After having a no-commitment discussion with the vendor, the purchaser or their advocates need to conduct an official search at the Land Registry within the locality of the land.
The search is applied for using a photocopy of the title and the results are issued between one or five days, depending on the registry.
The official search results encompass the details of the registered owner, whether there are encumbrances like a charge or other caveats on the land, whether the land is freehold or leasehold and the size of the property.
In some cases, a mere official search is insufficient, and a green card search is required especially where an irregularity is feared. Good cause must be provided for a green card search to be conducted. Green card searches reveal the history of the title, previous owners, registration of any way-leaves, and previous encumbrances over the property.
Search at County Land Registry
If the property falls within a municipality area, the property is ratable. It is advisable to visit the County Land Offices to ensure the rates have been paid and confirm the registered user of the land.
The word user connotes the permitted activities in the occupation of the land. For instance, land designated for commercial purposes cannot be used for any other purposes except as such, and similarly, residential designated land cannot be used for commercial purposes.
Should the land fail to match its designated use, the buyer will have no option but to drop the bid or apply for a change of user.
A purchaser should always demand the issuance of a Rates Clearance Certificate – even when the certificate is not mandatory – before the land is transferred from the vendor to the purchaser.
Search in the Registry of Persons
In the contemporary world (especially Nairobi), it is essential not to take anything for granted as society has many fraudsters who can masquerade as the registered owner using falsified identification documents.
An unsuspecting purchaser can easily find themselves on the receiving end of a fraudulent transaction after parting way with their hard-earned money only to receive a rude shock when the Registrar of Lands declines to transfer the title to them.
Apply for a search at this registry to verify the authenticity of the vendor’s identity documents before proceeding with the transaction. However, access to this registry is limited to members of the public, and you will require an experienced conveyancer to obtain the search for you.
This marks an essential stage in due diligence to ensure that the properties boundaries are well outlined and to ascertain the condition of the property. A Deed Plan from the relevant county surveyor office can be obtained, showing the various dimensions of the land, and ensure beacons are well delineated.
If you can afford it, engage the services of a surveyor to assist you to confirm that the property that you are being shown on the ground is the correct one that you are purchasing.
Make the most of your site visit and take note of the critical features of the land. Are there signs of flooding e.g trees or buildings that have above surface watermarks, what is the type of soil present – is it conducive for construction or agriculture?
The writer works at Muthoga & Omari Advocates.
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