When the promised land is a sham: Buying land that’s unfit for use

The farm-gate prices of onions had just crossed the Sh100-a-kilo mark when John Wambugu met Archangel Barachiel, the Angel of Good Fortune.

On Facebook, a man was selling a piece of land right in the heart of one of the most productive areas famous for growing onions in the country.

Half an acre was going for half a million. It sounded like a bargain. Wambugu whipped out his calculator and punched in numbers. Then he made a call he regrets to this day.

“Within three days, I had bought the land and was ready to start farming,” he says. It was a huge miscalculation.

The piece of land in Gitegi, Kieni West, Nyeri County, was virgin. He cleared the vegetation and, in the relatively dry season, planted onions.

Rain was irregular but he did not mind irrigation. The return he expected at the end of the season was such a huge motivation that he did not give the idea of potential loss any thought.

Towards the end of the season, he was still in for a big harvest. Then one day, while he was in Eldoret, a call came.

“I was told that it had rained heavily and my onions had been swept away. Just as I was readying for the market, floods decided to help me harvest,” he giggles. “I do not know to what market my produce was taken.”

Wambugu travelled to Nyeri the next day and was devastated at what he saw when he got to his farm. The valley inside which he had bought the land was a river course. All the onions were gone, as had the topsoil. This, he learned, happens whenever heavy rains fall.

“It turned out that the man who sold to me was disposing of the land after realising he could not do anything economically viable on it,” Wambugu says.

His money was gone, his onions had vanished and his dreams of making a fortune out of onion farming had evaporated. That was when he realised he had fallen prey to a broker. Half an acre in the area was going for slightly under Sh400,000, yet he had parted with Sh500,000.

Wambugu’s is not an isolated case. Potential landowners have been tricked into buying land in dry areas or economically unviable places.

Such parcels are sold in the rainy season when vegetation is lush. When the sun sets in, all hell breaks loose for them. This is common in Laikipia.

In other regions, buyers have acquired land in what turns into reservoirs, or swamps when it rains.

Paul Syagga, a former professor of land economics at the Department of Real Estate and Construction Management of the University of Nairobi, says that while the seller should give full disclosure when selling land, it is upon the buyer to conduct due diligence.

“That is why we have the Latin phrase Caveat emptor,” Prof Syagga says. Caveat emptor roughly translates to “let the buyer beware” and is a disclaimer that places responsibility on the buyer to conduct due diligence before making a purchase.

It is the buyer, he says, who knows what he wants to use the land for. As such, every buyer should have a checklist of questions that tell them if the land will be suitable for what they need to do with it.

Full disclosure is not enough for the buyer; one needs more than details on who owns the land, its location and size, and details such as encumbrances.

An encumbrance is a claim against a property by a party that is not the owner, such as mortgages and easements. The buyer needs to know if other parties will come making claims on the land for whatever reasons.

Due diligence, including consulting with people living in an area alongside querying the seller before purchasing, will save the buyer money and frustrations.

If near a riparian area, for example, the buyer should ask around to know to what levels the water rises during the rainy season.

Such information will not be available in the records, and the buyer might be eager to leave it out so they can close the deal without much hassle.

Wambugu, who has not been to his farm in weeks, does not blame anyone but himself.

“I rushed. I fell into a trap. I would have consulted but I did not,” he says.

Prof Syagga notes that after one has conducted a land search (which includes visiting the land registry to ascertain the ownership of the land), one may still come across other pitfalls, and should therefore tread carefully.

“Consulting is important. If you were buying an apartment, you want to know the rents that are charged in the area. You want to calculate your return on investment. That same thing should happen when buying land. Determine what you wish to do with the land and the returns you expect to get. Consult,” advises Prof Syagga.

Peter Mburu, a property lawyer, gives the clear steps to follow when buying land.

Talk to neighbours. Sometimes you need to wait and see how the land behaves in different seasons. Don’t be in a rush to buy property; examine it as if you were buying a vehicle, where you would need to do a road-test.”

Dr Mburu says that some land titles indicate land use while others don’t. Physical planners can also assist as they carry out use zoning and can offer expert opinion.

“As a buyer, you can also insist that all information, including the user details, be on the sale agreement. The sale agreement can also task the seller to disclose all material facts and that the land is suitable for intended purposes,” says Dr Mburu.

The buyer must also make it clear from the onset for which purpose they are getting the land, and have it on the sale agreement.

“If it’s on the sale agreement, one has a legal recourse,” he says.

Potential land buyers should be wary of unreasonably low prices. These are red flags.

“You are paying a price that is directly proportional to the productivity you will get. And if the price is low, then you can as well blame yourself if the productivity turns out to be very low. You will be paying the price you avoided paying when purchasing the piece of land,” says Prof Syagga, adding that cheap will always be expensive.

A buyer should also look out for developable land. Some companies offer land at low prices, but then such land is hardly accessible and buyers have little amenities at their disposal.

“You might buy land that is 30 kilometres off the main road and where you will be the only settler in thirty years. If you cannot access the amenities, then the low prices offered to you are not worth it,” Prof Syagga cautions.

Buyers in this case might use a lot of money trying to develop the land, often with little success.

Whenever he is doing a valuation for a piece of land ahead of a sale, Prof Syagga always asks the seller why they are going into a sale. This can tell if the seller is genuine.

“Implications of buying land should be known. A majority of those offering land for sale is simply doing away with it because it is unproductive. They are looking for unsuspecting buyers to take the burden off their shoulders.”

The land economist says that as a dairy farmer, he has encountered many people selling their livestock simply because they are getting rid of what has become a problem for them.

“You buy that, you inherit the problems, as the seller intentioned,” he says. Equally, anyone willing to buy land that is freely advertised should be cautious.

Wambugu says he will not be selling that piece of land, at least not to an unsuspecting buyer. He would if he wanted to; he would just bolt and hideaway in Nakuru where he comes from. However, he feels that would not be the right thing to do.

“I do not want to pass these problems to another person,” he says. “I will plant trees, most probably blue gum and even if they take longer to mature, I will still make money at some point.”

Hopefully, the rains won’t be too soon and torrential. Otherwise, his seedlings will not survive.