Legal Issues Arising in the Buying of Property

I have realised that there is a lot of information out here regarding the sale and purchase of land provided by different individuals and entities. Some of the information is right, however most of it misleads possible purchasers of land and property which eventually leads to pitfalls. In the next few articles, we shall be discussing scenarios that arise in the purchase of property and their legality.

The first thing you should always establish is whether the person selling is the registered owner. This is what we call capacity. Sometimes, an individual or a company will approach you with the intention of selling to you a plot “maguta maguta” (meaning hot property); however, it will emerge along the way that the property is not registered in the name of the seller, rather that is belongs to another individual.

In this scenario, that individual has no capacity to sell that property. You will not be buying the property from the owner of the property since the person selling the property is also not the agent of the registered owner. This is actually a fraudulent transaction because you intend to acquire property belonging to A from B.

Whose name appears on the agreement? Is it the same name as the one that appears on the title deed? If not, then that person has no capacity to sell. Only the owner of the property can sell it to you.

Another question that arises a lot in practice is where an individual claims that they are the son or daughter to the owner. A child has no capacity to sell a property that is not theirs despite the close family relationship.

Maybe the son or daughter will tell you that they are going through succession so they can sell. Meaning that they have lodged a petition for letters of administration of a property of their deceased parent, and they are selling off the property.  At that point no one has capacity to sell.

The reality is that these agreements are entered into by family members and potential purchasers. However, from a legal stand point the sales are not legal and are not enforceable. If you Purchase property under this scenario then you run a risk of losing the property in the event of a dispute.

Property that belongs to the deceased person can only be sold upon the court issuing and confirming letters of administration to an administrator of the estate.

If you therefore enter into an agreement for the purchase of this property before confirmation of the letters of administration you are entering into an illegal transaction that the Court can not help you enforce.

The above scenarios are intended to illustrate examples of transactions that we enter into on our day today lives that appear proper. However, when the law is strictly applied you lose your money.

Before entering into any transaction, you should confirm that the person selling the property is the registered owner of that property through a search at the ministry of lands. If possible, you can obtain a certified copy of the green card that will show you the previous owners of the property you intend to purchase.

If you conduct a search and you are satisfied that the person selling is the registered owner, enter into an agreement only with the registered owner.

We will continue to discuss the issue of capacity in entering into agreements for sale. In the next article in the series.

Be further advised that we shall not be held liable in the event you rely on the information herein without a further in-depth consultation based on your unique circumstances as the same is a general guideline. Our team at Wachira Wanjiru & Company Advocates continue to be available for any consultations that you may require with regard to arising legal issues. Contact us on info@wachirawanjiru.co.ke or +254720790133 for your business needs.