This is part of a series of articles from The ABC of REAL ESTATE investment in Kenya.
Buying land in Kenya involves a high risk of fraud nowadays. This has made it necessary to be thorough in the land buying process to ensure that you aren’t dealing with conmen or land that is tied up in dispute, among other risks. One therefore needs to carry out a land search to ensure the land being sold exists and is validly for sale with no barriers to transfer its ownership to you.
Land search.
If you wanted to buy a piece of land, you need to ask the seller to give you a copy of the title deed in order for you to carry out a search. This is what you need to know about a land search:
Land: Includes land covered by water, all things growing on the land and buildings and other things permanently fixed to the land. Land has been observed ―to be man‘s most valuable resource. It is the means of life without which he could never have existed and on which his continued existence and progress depend.” Sir Bernard Binns 1953.
Land refers to both immovable real property and the interests and rights emanating thereon. It is the physical object that encompasses the surface of the earth and all things attached thereon but also a set of rights with a value that can be traded even though the physical cannot be moved
A search is an inspection of the land register (kept in the district land office) in order to obtain particulars in regard to any land that has a title deed or lease certificate.
The land register is divided into 3 sections as follows:
1. Property section – It contains a brief description of the land. It shows whether the land is freehold or leasehold:
Freehold: This refers to the total ownership of the land that one can obtain from another through purchase or gift and is regarded as the greatest interest in land.
Leasehold: This entails the transfer of interest from the lessor to the lease holder (lessee) in which the latter agrees to pay rent and observance of the lease covenants. The lessee is restricted to the use of the land much more than the free holder is. Examples include allocation from the Government to local authorities, government bodies and individuals.
2. Proprietorship section – Has the name and address of the proprietor and a note of any inhibition, caution or restriction affecting his right of disposition. Caveats/cautions are restrictions on land prohibiting any dealings or transactions on a particular property.
3. Encumbrances section – Has a note of every encumbrances and every right adversely affecting the land or lease. Encumbrances refer to adverse rights in land. Encumbrances are registrable rights and include charges, and mortgages. Such rights are not transferable under English law and these overriding interests must be checked for by enquiry and inspection.
A mortgage or charge enables the land owner to transfer temporarily the rights to another party (lending institution) so as to obtain a loan against the land as security for the repayment.
Reference: Republic of Kenya (2009) Registered Land Act (CAP 300).
Government Printer, Nairobi.
The above article is an extract from the book :
The ABC of REAL ESTATE investment in Kenya “The Law, The Logic, The Math”
Click here to get your copy of the ABC of Real Estate investment in Kenya.
Written by: Kariuki Waweru. BA (Land Econ) Hons, UoN, G.M.I.S.K (VEMS)