You can hardly get it wrong with a lawyer when buying land

Within a period of five months starting November 2011, 500,000 acres of land were controversially acquired by 22 companies in Lamu County. How? One wonders. This is the question that has seen the government lock horns with land buyers.

On one hand, the firms say they acquired it legally. On the other, the ministry of Lands has been showing how the said land owners are ghost investors if not land grabbers.

Inevitably, as this war ensues, the unsuspecting small and medium land buyer who bought a parcel of the controversial block of land will inevitably be in for a huge loss. Evidently, land problem is not only constrained to Coast. Quite often, many investors across the country have found themselves caught up in a web of deceit that has come to characterise land business in Kenya.

Take Thomas Wanyonyi for instance. He had been saving Sh26,000 per month for two-and-a-half years in order to buy a plot of land and build his home. His pursuit neared fruition in June last year when he came across an ‘on-sale’ placard on a 50-by-100 plot in Kiambu County.

“I was confident that the plot was the best investment decision I could make. It was near the tarmac and the location was secure,” he says. He contacted the seller. “The respondent said he was the owner and we agreed to meet on the site with his lawyer and surveyor.”

Although Mr Wanyonyi had thought of hiring a conveyance lawyer to ascertain authenticity of the land, he was put off by his fees. “He charged Sh70,000. It was too much for me.”

His suspicion that his lawyer could have overcharged him seemed vindicated when he saw the land documents.

“They looked genuine with official stamp and logo. The seller’s lawyer attested to this,” he says. The surveyor explained how the land had been demarcated, erasing any iota of doubt in Mr Wanyonyi’s mind.

Out of excitement, Mr Wanyonyi handed the seller Sh600,000. “We signed an agreement witnessed by his lawyer and surveyor that I’d pay the balance, Sh100,000, on getting the title deed.”

Two days later, he called the land owner to find out the progress, but his phone was off. “Even the following day, his phone was switched off.”

Worried, he visited the site again only to find a new placard saying the plot was family land and the owner would not be responsible for any fraudulent transactions.

Hurt and in hurry to help salvage his case, he hired a conveyance lawyer who checked the plot’s ownership with ministry of Lands. “I was shocked to learn that I’d been conned. The land belonged to a different person.”

Mid-last year, Elsa Atieno was shocked to read an advertisement in the dailies saying that the land she owned belonged to Kennedy Onyango and it was up for sale by public auction in Kisumu.

On going to Kisumu lands office to verify its details, Ms Atieno realised that her particulars had been altered and the certificates had the name of Kennedy Onyango as its owner. The land was registered as Kisumu/Ojola/4330.

Although Nairobi, Machakos, Kiambu and Kajiado counties have prevalent cases of fraudulent land deals, other parts of the country are not immune. Take Ol Kalou town, in Nyandarua County.

Since inception of county government, multiple cases of double land allocation, illegal land allocation, public land sales, and bloated land rates have come to the fore. Currently, residents in the town have been barred from buying, selling or developing land, pushing house rent upwards even as demand soars.

As Money found out, most of the land cases where buyers have been duped into buying non-existent plots, or acquiring doubly-allocated ones, have involved quick transactions devoid of verification.

Sell, buy history

Which begs the question, what can one do to steer clear of fraudsters? According to an advocate of the High Court of Kenya, Mr Murigi Kamande, conducting due diligence is very important.

“Begin by conducting a search to confirm genuineness of the title to find out the real owner,” he says.

Your search should start at the ministry of Lands. “Thereafter, you could carry out a physical search of the land to find out whether it is developed by anyone else or if there is a caveat on it. You should also ask about the land from neighbours who are likely to know its sell, buy and ownership history.”

If you are buying from a company, conduct a search at the company registry to establish if it exists and who the owners and, or directors are. When signing the land buying agreement, make sure that it contains your name and that of the seller, your identification details, the plot’s proper description, agreed buying price, mode of payment, any conditions that may accompany the sale and, or possible refunds, and the terms that will dictate its sale.

Mr Kamande notes that you should always be wary of land without a title deed.

“A fraudulent seller is likely to dupe you into paying the entire price if he or she does not have a ready title deed. If the land encounters issues thereafter, the transaction from him to you is bound to be difficult to push through.”

Similarly, potential land buyers ought to demand that sellers provide them with land rate and land rent payment receipts.

“Always ensure that the seller has fully paid any pending land rates with area county authorities. The rate receipts should contain authentic details of the land owner,” Mr Kamande says.

Often times, this is a process that many land buyers are unwilling to undertake.

Get lawyer through referral

While a buyer may opt to get a lawyer, many others have no idea how or where to get a good lawyer as Japheth Okinyi who is searching for a 40-by-80 piece of land in Kajiado says: “I have been presented with five offers but I don’t know how to authenticate them. I fear that I may get a lawyer who is out to take my money without conducting due diligence.”

Similarly, land buyers think that lawyers are expensive. But according to Mr Kamande, the best way to get a good lawyer is through referral.

“A good lawyer must have a proven record in conveyance,” he says. The minimum cost that many will charge in Nairobi is between Sh30,000 and Sh50,000. “There are those who will include this fee in total cost of the entire land transaction,” Mr Kamande notes.

Despite the cost, a land buyer will hardly get it wrong with a lawyer. “He’s well versed in the subject and will be better placed to abort any booby traps.”

Essentially, your lawyer will prepare a document that will transfer all rights regarding the land from the seller to you.

“This document should contain passport photographs of you and the seller, your ID or passport numbers, signatures, PIN numbers and should be witnessed and certified by your respective advocates,” Mr Kamande says.

Apart from a conveyance lawyer, you will benefit by hiring a registered surveyor with a proven track record on land deals.

“The surveyor should identify and verify the land beacons and check whether they are correctly marked at the land’s office,” says Isaya Oketch, a land surveyor in Nakuru. This will enable you to see the land on the ground, know how it is shaped and where the boundaries are.