Here are laws that allow children to own property

There have been numerous cases of children of property owners being sidelined in inheritance when their parents die. It is sad that a child grows up in poverty when their parents invested in real estate. Do we have laws that protect children from greedy relatives who want to sideline them upon their parents’ death?

Belinda, Nairobi.

 

Yes, property laws in the country have provisions that explicitly allow children of tender years to own property.

For instance, Section 47 of the Land Registration Act allows a child to be officially registered as a legal owner of an apartment, mansion, bungalow or land. The registration is to enable the interest of the minor to be held in trust under the name of the guardian.

But even as the law provides for the ownership rights, a child has no powers to personally transact (sell or lease) the property — the law requires the Registrar of Lands to enter the restriction accordingly. Separately, the Land Act also provides that a child is capable of holding title to land through a trustee. It further provides that the child shall hold the same position as an adult with regard to liability and obligations to the property.

Even as the two property laws offer children property rights, a restriction on their powers to transact is important to preserve the investments. For instance, guardians have powers and responsibility to administer the estate of the child — receive, recover and invest the property for the benefit of the child.

Some modern parents have bequeathed their children investments in real estate while others have included them in wills as sole beneficiaries. Some of these parents are aware that their biological children may be side-stepped in property ownership in case they (parents) die early.

It is also a reality that some parents opt to register property in the names of their children to avoid battles over matrimonial property should the marriage hit the rocks.

For some married women, registering property under children is the surest way of locking out of inheritance children who husbands may father with mistresses. For children who inherit property of their departed parents, courts often appoint guardians or trustees to administer the estates on their behalf until they are 18.

Other responsibilities of guardians include taking reasonable steps to safeguard the estate of the child from loss or damage. If properties owned by the child are rental apartments, mansions or bungalows, the guardian must keep records of payments up-to-date and produce them in court when required.

Moreover, it is an offence for a guardian to neglect or fail to produce books of account in respect to property of a child when demanded. The Children’s Act of 2011 cracks the whip on guardians of the estate of children found guilty of failing to account on proceeds from property of minors.

— Harold Ayodo is an Advocate of the High Court.

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