Why you need a lawyer when purchasing that piece of land
The process of purchasing land can be complex and risky, and it is advisable to involve a competent lawyer to ensure that your interests are well protected.
Land is one of the most precious resources in Kenya whose value rises significantly over time. Highly valued for its appreciation, many Kenyans aspire to own land. Unfortunately, being a costly commodity, land attracts shady people out to con buyers of their money.
The Kenyan real estate sector has become a risky market, with many potential landowners losing their money to cons who sell non-existing parcels of land with fake title deeds.
Many have been misled by numerous advertisements on mainstream media and social media promising quick access to various assets such as land, ending up in the hands of cons.
In January 2023, the Environment and Land court in Thika nullified a fraudulent sale of a two-acre land in Ruiru by Mwalimu Farm Investment Company Limited. The Land Registrar in Thika claimed that the documents showing the transfer of property from the government to Mr. Samuel Muchai, the claimant, and later to Mr. Edwin Githiaga, the third defendant, were missing from the land registry in Ruiru and Thika. The court held that Mr. Githiaga failed to produce documents proving how he acquired the Ruiru land.
Evidence produced by Mr. Muchai, who was a teacher at the time, and a member of Mwalimu Farm Investment Company shows that he bought the land in 1983 at KSh 900 for an acre and was asked to wait for the processing of the title deed. However, after following up for a long time, a copy of a register for the property revealed that the title had been fraudulently released to Mr. Bernard Karema, the second defendant, who in turn sold it to Mr. Githaiga.
Currently, a section of prospective investors in real estate are hoping that a proposed draft Bill seeking to protect land buyers from fraudsters sees the light of day. According to the Bill sponsored by Kirinyaga Central MP Joseph Gachoki, land-selling companies will be required to deposit KSh500 million which will be similar to a depositor’s protection fund to protect customers against the loss of their deposits following the collapse of a bank.
The principal object of the Bill is to regulate the registration and licensing of land-buying companies and to protect the interests of people who purchase land from them (land-buying companies).
The process of purchasing land can be complex and risky, and it is advisable to involve a competent lawyer in the process to ensure that your interests are well protected. It is prudent to get a Conveyancing Lawyer for this task as land and property issues are their specialty.
While hiring a lawyer is not a legal requirement, it is highly recommended to do so to ensure that the transaction goes smoothly and that you don;t lose your money in the long run. The lawyer’s role in the process of purchasing land can be divided into three stages: pre-contractual or negotiation, contractual, and transfer of land stage.
The pre-contractual stage
This is the initial stage of the process of purchasing land in Kenya. During this stage, the buyer identifies the property they wish to purchase and negotiates the terms of the sale with the seller.
The lawyer’s role during this stage is to conduct an official search at the Land Registry where the land is situated to identify the registered owner of the land, any encumbrances on the land, and any other relevant information. The lawyer also reviews the sale agreement and advises the buyer on any legal implications of the agreement.
This stage is important as it structures the outline of why the two parties are coming together on a project and ensures that both parties have a thorough understanding of the agreement. During this stage, the parties are expected to provide each other with all the information needed.
The contractual stage
During this stage, the sale agreement is prepared and signed by both parties. The law requires all agreements of the sale of land to be in writing, signed by all parties, and attested to by a witness who is present when the contract is signed.
The lawyer’s role during this stage is to draft the sale agreement and ensure that it is legally binding and protects the buyer’s interests.
The lawyer also ensures that all the necessary legal requirements are met, such as stamp duty payment and registration of the sale agreement.
Transfer of Land stage
During the transfer of land stage, the lawyer plays a critical role in ensuring that the transfer of ownership is done legally and that the buyer obtains legal ownership of the land. The following are some of the roles of a lawyer during the transfer of land stage:
- Preparation of transfer instrument – The lawyer prepares the transfer instrument, which is a legal document that transfers ownership of the land from the seller to the buyer.
- Approval of transfer instrument – The lawyer ensures that the transfer instrument is approved by the seller’s lawyer.
- Legal advice – The lawyer provides legal advice to the buyer on the legal implications of the transfer of ownership.
- Verification of documents – The lawyer verifies that all the necessary documents are in order, such as the title deed, land search documents, clearance to transfer certificate from the Land Control Board (LCB), and the transfer forms signed.
- Payment of fees – The lawyer ensures that all the necessary fees are paid, including stamp duty, land rent clearance certificate, and transfer fees.
- Consent to transfer – The lawyer obtains consent to transfer from the Commissioner of Land.
- Rent clearance certificate – The lawyer ensures that the buyer obtains a rent clearance certificate.
- Copies of ID and KRA PIN certificates – The lawyer ensures that the buyer provides copies of their ID and KRA PIN certificates.
- Passport size photos = The lawyer ensures that the buyer provides two copies of colored passport size photos for each party.
While it may involve additional costs, getting a lawyer can save you money in the long run by preventing problems before they arise. The cost of hiring a lawyer when purchasing land varies depending on the complexity of the transaction and the purchase price of the property. The cost can also be affected by other factors such as the lawyer’s experience and reputation. Therefore, it is important to discuss their legal fees with them before engaging their services to avoid any misunderstandings.