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Protect leaseholders from their own ignorance and land vultures
What you need to know:
- Due to our familiarity with rural land rights enjoyed from ancestral communal land and those held under freehold tenure, many of us have not quite internalised the practical limitations of leasehold rights that go with urban properties.
- If a businessman bought property in River Road in 1970 whose 99-year lease issue date was 1910, then, unless extended, the lease expired in 2009.
- Institutional disagreements on how and who is to process extension of leases following the exit of the Commissioner of Lands have left applicants waiting without direction for over two years. This gap has, in some cases, been exploited by masters of fraud to produce parallel leases.
Perhaps you hold a lease from government and have put up commercial units or a residence. But here comes some gentleman one early morning flashing a set of papers, pronouncing you a trespasser.
He meticulously takes you through the lease he holds to the property, complete with all stamps from the Lands ministry, following which he demands that you vacate.
Confused, you rummage through your pile of confidential documents to get the set of papers you believe relate to your ownership. It’s then that the truth hits you. The lease in your custody expired two years back. You are utterly devastated.
This has happened to a number of citizens. I shared the information during a recent forum facilitated by the National Anti-Corruption Campaign Steering Committee, giving tips on how to confront corruption in our land administration system.
As I write, Kenyans who held 99-year leases issued between 1900 and 1920 in parts of Parklands, River Road and Biashara Street in Nairobi face such dire prospects.
Sadly, due to our familiarity with rural land rights enjoyed from ancestral communal land and those held under freehold tenure, many of us have not quite internalised the practical limitations of leasehold rights that go with urban properties.
So, after investing in properties in town, many retire to the rural areas only to occasionally visit the city to check on their properties or to collect rent. They hardly consult ownership documents for lease expiry dates. Should the leases expire, such properties can be reallocated.
The same fate could meet owner-occupied properties where leases expire. There are also cases where property owners die, leaving behind beneficiaries totally unaware that the leases require periodic renewal. These, too, can be easily reallocated after the lease’s expiry.
But there are also cases where owners apply for extension of leases only to suffer delays and frustrations from persons outside or inside the Lands ministry keen on benefiting from the lapsed leases. Such leases could expire and get reallocated to other people.
EXTENSION OF LEASES
It would be important to remember that a lease term runs from the date of issue. So if a businessman bought property in River Road in 1970 whose 99-year lease issue date was 1910, then, unless extended, the lease expired in 2009. This left the then Commissioner of Lands with legal latitude to reallocate such property to “some other deserving persons.”
It would help if we all appreciated the nature of leases and kept a good account of the expiry dates so that we seek renewal way before expiry. Where borrowers die, lending institutions holding their leasehold properties as collateral must find and inform the heirs about such properties in good time to facilitate timely renewal.
Negligence by such institutions in this regard has undermined extensions, hence adversely exposing such properties.
But a big appeal to the government. Through its circular dated January 23, 2012, the government froze all dispositions of public land, including renewal of leases, until the National Land Commission came into office.
This Commission assumed office in February 2013. Even then, institutional disagreements on how and who is to process extension of leases following the exit of the Commissioner of Lands have left applicants waiting without direction for over two years.
This gap has, in some cases, been exploited by masters of fraud to produce parallel leases. Court cases filed on account of such parallel leases occasion needless costs and frustrations to the bona fide property owners.
Since the delays are government occasioned, all leaseholds that expired within the last three to five years ought to be automatically renewed. Moreover, holders of leases that expired after the coming into effect of the new Lands Act on May 2, 2012, are protected by this new law.
The law requires that the previous owner, if a Kenyan, enjoys the first right of reallocation unless the land is needed for public use by the national or county government. Furthermore, to promote development, no Kenyan should lose his or her developed land without compensation.
Mr Mwathane is a consultant in surveying and land information management ([email protected]).
