Markets & Finance
Caveat Emptor: How to avoid buying property with a questionable title deed
Tuesday May 23 2023
Caveat Emptor is a Latin phrase that means buyer beware.
In matters of real estate, it is a heaven-sent phrase as it absolves the seller of any encumbrances that may have befallen the property.
To the buyer, however, it spells doom especially if he or she was not aware of any such notice prior to making any payments towards purchasing of any such property.
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Nowhere is the caveat emptor phenomenon currently playing out than in an ongoing case of an apartment complex in Kileleshwa where individuals stand to lose millions of shillings for buying into a property that apparently belongs to the government.
In a notice appearing in the dailies, Telposta Pension Scheme has issued a caveat emptor on an apartment complex stating the unit was built on land designated as government quarters and as such is not for any private allocation.
I sympathise with buyers
The matter gets more complex from there with those who have shared on the issue blaming the goose and also blaming the gander.
“Weuh!! Telposta waited all these years while this property was being built in Kileleshwa, watched as innocent public sink in their savings and loans buying units, only to do this (issue a caveat emptor) when people have already moved in,” said Nahashon Okowa, a Twitter user.
“I sympathise with the buyers.”
Another Twitter user by the name Kenyanthoughts weighing in said, “As long as they (Telposta) kept giving notices and warnings over the years, and the developer continued building, then you can’t blame Telposta…Always do due diligence.”
The Kileleshwa property is just one of the many such cases that have come to the fore where buyers are duped into buying properties whose titles are questionable.
There have been cases in Pangani, Lang’ata and Thindigwa among others.
Conveyance lawyers said that due diligence on a property before buying is the cornerstone of any property transaction and should not be taken as a mere formality.
“Background checks on a property before any sale agreements or money exchanging hands is of utmost importance,” said Nicole Wanjiru, a conveyance lawyer with Chege, Kariuki and Associates.
“A buyer, through their lawyers, needs to be sure of the actual owners of the land that a property sits on before they buy any property. This is to ensure that there is no order of inhibition, any caveats or any encumbrances on the property.”
According to Ms Wanjiru, lawyers need to go to the second level and extend the search on titles to the Ndung’u Land Report.
“Many searches often just end at the land registry. It is important (on the part of the lawyers or the persons conducting the search) to find out if a property is listed in the Ndung’u Land Report as it contains properties that are in question or property of concern,” said Ms Kihara.
The Ndung’u Commission was set up some years back to identify all government land and properties that are in question. While some of the cases have been resolved, a number of them are still due in court and have caveats on them.
A spot check on previous and ongoing cases where caveats have been issued points to cases involving disputes between family members, between companies or investment schemes and is also predominant on government land.
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Zipporah Mwau, a conveyance lawyer with Zipporah Mwau and Company Advocates said that one needs to have a general idea of the type of property they are dealing with in advance before knowing how ‘extra’ the due diligence needs to be done.
“When doing a search, ensure you get the mother title or the green card as the case may be to know who the initial owners were, check all the transactions since the first owner to the present and corroborate if it was is being sold matches the building plan,” said Ms Mwau.
According to Ms Mwau, land titles generally fall under government-owned land–abbreviated as GLA on the title–which can only be transferred to individuals through an official gazette notice.
Such examples include Kileleshwa, Nyayo Embakasi, Karura, and Ngara among others.
There are parcels such as in Kitengela, Katani and Kajiado, which are abbreviated as RLA on title, which are held in freehold that require that one gets a certified copy of the green card.
There are also properties such as those found in areas such as Nanyuki, which are abbreviated RTA on the title, that require that one traces ownership up to the mother title.
“It is also important to check for any gazette notices officially announcing de-gazettement if the land was re-allocated by the government for private use,” said Ms Mwau.