BY DELFHIN MUGO
The process of closing a deal in real estate is cumbersome and requires extreme caution, says, Dr Tom Kabau, an advocate. He adds that when you are eying a real estate deal, carrying out a search at the land registry should be the first step in a land sale because it ascertains the real owner of the land.
He notes that after conducting a search, a lawyer will advise you to visit the property to ascertain its true value. In addition, a visit to the land reveals the nature of local environment.
“The land could be next to a dumpsite, making it uninhabitable, or it could be next to a quarry, meaning it could collapse if someone decides to excavate near your house,” Mr Kabau notes.
In addition, a search establishes whether there are any caveats or cautions on the land. For instance, a spouses might have registered a caution with the Land Registry, prohibiting the sale of the property without his/her consent.
Stressing the need to have a lawyer look into such issues, which he says might have serious consequences if ignored, Mr Kabau adds: “The Land Act of 2012 and The Land Registration Act of 2012, require that a spouse consent to the sale of matrimonial property.”
As for caveats, Dr Kabau advises potential buyers to watch out any sale which is done through a restrictive covenant (agreement), which stipulates what can be done or cannot be done on a particular property. The agreement is usually registered with the land’s registry.
“Under a restrictive covenant, the original owner regulates the kind of structures to be put up. For instance, houses built in such an estate follow a certain design and might have a restriction to the number of stories one can put up,” he offers adding that buyers should establish whether the land they are eyeing is affected by such provisions.
First, the buyer and seller should get advocates to represent them.
“The vendor’s advocate is responsible for drafting the sale agreement, which indicates the value of the land, the obligations of both the buyer and the seller, identifies the land through a reference number, captures the completion date of the transfer and the intention to sell in the sale agreement,” offers Dr Kabau.
However, before doing this, he/she has to get certain consents. These include the consent of the Land Control Board, spousal consent, which comes in form of a signed affidavit, a leasehold consent where the buyer intends to buy a property that is on lease. This last consent is obtained from the government and shows that the State has allowed the leaseholder to transfer the lease. The lawyer also needs to get a rent clearance certificate from the government for the property and a land rates clearance certificate from the county government.
After getting these documents, the vendor’s advocate drafts the sale agreement, which is forwarded to the buyer’s advocate for approval.
It is worth noting that the sale agreement is drafted by the vendor’s advocate while the transfer document is done by the buyer’s advocate. These are the two main documents that change hands during the transaction.
“Once approved, the sale agreement is signed by the seller and the buyer in the presence of both advocates,” says Dr Kabau, adding that the advocates witness the signing and append their stamps.
At this point the buyer pays a 10 per cent deposit of the value of the property to the seller. But for the process to have come this far, a search is mandatory.
“The buyer’s advocate will advise him/her her not to sign the sale agreement or make any payment until they have verified that the property belongs to the seller, and that it has the physical attributes that satisfy the buyer,” says the don.
Having received all the requisite consents and having witnessed the signing of the sale agreement, the responsibility shifts to the buyer’s advocate to draft the transfer document.
To do this, the buyer’s advocate should be given two passport-size photographs of the seller (to be affixed to the transfer document) the national identity card number, and the Kenya Revenue Authority’s Personal Identification.
Number of the seller, which are all included in the transfer document as required by law.
The transfer document is then drafted, and with the approval of the vendor’s advocate, it is signed by both parties in the presence of the advocates. After the signing, the buyer has to pay the remaining 90 per cent of the sale value, which he/she can do directly to the seller, or through his/her own advocate.