QN 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.
QN 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.
QN 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.
QN 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.
QN 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.
QN 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.
QN 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.
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