Pay close attention to detail and get professionals to assist you

Q How do I tell that a title deed or allotment letter is fake?

This is very tricky, and sometimes next to impossible in some cases. Fake titles and allotment letters come in various forms.

A fake duplicate of an authentic title: This where conmen obtain a genuine title and produce a replica with all the details, signatures, and seals of the genuine one, then use it to swindle a potential buyer.

This kind is trickier to prove because when one conducts a search at the relevant lands office, the same details and particulars of the title deed will be emerge from the search, leading a potential buyer to conclude that the document is clean.

And usually, it is discovered too late, when payments have been made and the genuine title holder shows up, or even when the transfer documents are taken for registration at the lands office.

A fake title that looks authentic but does relate to an actual parcel of land: This is where conmen, having mastered the art of making these fake titles, identify a parcel of land that is, for example, a road reserve, riparian land or even grabbed and prepare a title that has all the attachments. A simple search for this at the lands offices will reveal the true ownership.

However, where corrupt land officials are working in cahoots with the conmen and a file for the land has been opened at the lands office, then a simple search at the ministry will show the land as being in existence, and in many cases, it is only when the government comes to reclaim the land that it becomes evident that the title issued was fake. By then, the title could have moved to a third, or even fourth, party.

In other instances, it depends on who is viewing the title or allotment letter. For instance, a certified conveyance advocate who has been in the industry for a while might be able to detect a fake title by studying the materials used, as well as the entries, signatures and seals.

Q When buying land, what measures should I take, just to be on the safe side?

Where possible, and especially where you doubt the authenticity of the title, present the supposed original title for inspection by a land registrar at the relevant land office to confirm if it is genuine.

Before purchasing land, find out its history from reliable sources, such as neighbours, surveyors or advocates who have been involved in the transactions, land officials and so on.

It’s also important to involve experienced professionals such as a certified conveyance advocate, surveyors and valuers.

This is because such people will undoubtedly seek more information and request for additional documents — identity cards and personal identification numbers, copies of the previous registered transfers, paid-up land rent and rates (current and for previous years including the demand notes) — in addition to conducting a search at the relevant land offices.

It also helps to a conduct a search at the Survey Office of Kenya, just to verify that the deed plan is also in order, the parcel of land exists, and that the Land Reference Number (LR) tallies.

Before engaging in any transaction in allotment letters, obtain all the correspondences from the relevant authorities leading to the procurement of the allotment letter, together with all the receipts for moneys paid.

After that, you should present the same to Ardhi House to confirm whether a file for the same is, indeed, maintained as well as the current position in relation to compliance to enable you to procure a certificate of Title/Lease.

A history of the entire process will be availed, including the person named as the owner of the land. It is also important to deal with certified/accredited agents when looking for land.

Q What is the legal process of removing a caution or a caveat?

A “caution” is a notice in the form of a register to the effect that no action of a specified nature may be taken on the land without first informing the person who gave the notice.

A caution may be withdrawn by the cautioner, by a court order, or by the registrar.

The registrar, on the application of any person interested, may serve notice on the cautioner warning him/her that the caution will be removed at the expiry of the time stated in the notice.

If the cautioner doesn’t raise any objection at the expiry of the time stated, the registrar may remove the caution.

However, if the cautioner objects to the removal of the caution, he/she notifies the registrar in writing of the objection within the time specified in the notice, and the registrar shall, after giving the parties an opportunity to be heard, make an order as he/she considers fit, and may in the order provide for the payment of costs.

It is important to note that, 30 days after the date of the registration of a transfer by a chargee (the seller) in exercise of his or her power of sale, the registrar will remove any caution that purports to prohibit any dealing by him or her that was registered after the charge (notice to the lands ministry of the transaction) by virtue of which the transfer has been effected.

Upon the withdrawal or removal of a caution, its registration is cancelled, and any liability of the cautioner previously incurred under Section 74 of the Lanc Act shall not be affected by the cancellation.

It is also important to note that any person who lodges or maintains a caution wrongfully and without reasonable cause is liable to pay damages at the suit of any person who has sustained damage, to pay compensation to such person.

Q What should I do if I find myself holding a fake title?

The first action would of course be to immediately report the matter to the nearest police station or the Directorate of Criminal Investigation, where a statement will be recorded and an investigating officer assigned to the matter.

Criminal charges are then brought against the fraudsters and a civil case instituted to recover the amounts paid. Unfortunately in most cases, one realises this too late, when funds have already exchanged hands and the conmen are nowhere to be found.

Q If the mother title for my piece of land has been tampered with, what do I do?

You should report this to both the lands ministry and the police. The lands office will check whether the file on your parcel of land is still in order and any fraudulent transaction underway can be stopped at this point.

You can place a caution on the land to avoid any similar transactions from taking effect without your knowledge and consent.

However, where your land has already been transferred to a third party, you would have to seek the court’s intervention for orders to annul the fraudulent transfer and revert the title to you. The fraudsters should also be charged.

Q Why is a search important?

When purchasing real property, it is vital for the potential buyer to conduct a search before acquiring it or making hefty commitments against the property.

When buying from a company, you should conduct a search at the companies’ registry at Sheria House to ascertain that you are actually dealing with a legal entity, and to also establish who the directors and shareholders of the company are.

Perusing a company’s memorandum of incorporation and articles of association will also let you know whether such a company is operating within its established mandate.

Conducting a search at the lands office will help you ascertain the true ownership of the property; establish whether the title being used to transact it is genuine; establish whether the land actually exists; whether it’s a road reserve; whether the property has a charge, prohibitory order or caveat; establish the conditions and restrictions held in the title; verify the nature of the title, if freehold or leasehold, and where it is leasehold, establish its history.

Q What are the legal processes involved in acquiring land?

The first step is identifying the land/property through a renowned agent or directly from the owner. Once you have done this, you need to inspect the land/property and be shown the beacons demarcating it.

Thereafter, you should undertake due diligence on the title and get the necessary supporting documents. This will be followed by the drawing up and signing of a sales agreement.

After making the requisite deposits, the transfer instruments will be drawn up for the parties involved to sign, after which you can collect the completion documents.

You should do this after received the requisite land rent and land rates clearance certificates. Finally, the registration of the transfer in your favour will be made.

Q Which are the documents involved in the acquisition of a land title deed?

They are called completion documents as they are the last step in the transaction.

They include the original title deed for the land, the signed and witnessed transfer documents in favour of the buyer, the original paid-up land rents, receipts and clearance certificate, the original land rates’ paid-up receipts and clearance certificate, and the consent to transfer.