KENYA : Buying land can be a long and overwhelming process that can take months. Following the legal process and avoiding shortcuts is the best way to protect yourself.
Next, avoid greed and do not engage in deals that seem too good to be true. Importantly, actively involve witnesses and relevant government authorities at each stage of the land acquisition process.
Common mistakes people usually make are rushing through the process and letting their representatives do all the work.
Even if you choose to employ a lawyer or agent, it remains essential for you to stay actively involved in the process.
Finally, dedicate ample time to conducting comprehensive due diligence, including researching the seller's background and examining the land for encumbrances.
A Step-By-Step Guide To Successfully Buy Land In Kenya.
1. Determine The Kind Of Land You Want.
The kind of land you buy will typically depend on how you intend to use the land. Therefore, you should familiarise yourself with the zoning laws. Land in Kenya is divided into zones, including agricultural, residential, commercial, and industrial areas.
Typically, you won’t be able to use it for purposes other than their reserved ones. Therefore, if you intend to buy land to build your retirement home, you should only consider land in residential areas. The seller should disclose the zoning land to you, but to be certain, ensure you check land survey maps and title search results.
Next, define the type of ownership and tenure you want; freehold or leasehold.
Freehold ownership means the unlimited right to use and dispose of the land you buy perpetually. On the other hand, Leasehold ownership grants you (the lessee) the right to use and occupy the land owned by another party (the lessor) for a specified period, subject to the terms and conditions of the lease agreement. Upon expiry, the land will revert to the lessor, who can offer you the option to extend the tenure.
The lessor can be the government (when buying public or community land) or an individual if you are buying private land. Foreigners cannot buy or be awarded a freehold title deed.
Once you know what type of land you want and the kind of ownership, you can go to the market, search, and buy what aligns with your needs.
2. Set A Budget And Get Your Finances In Order.
Planning your finances is a critical part of the process of buying land. If you don't have your finances ready or a budget in my mind, you can overextend yourself and strain your finances.
To find out what you can comfortably afford, start by reviewing your current financial situation, including your income, savings, investments, and any outstanding debts or obligations. This will help you establish a budget, i.e., determine a realistic limit on how much you can set aside for the purchase without jeopardising your financial stability and other future goals.
Your budget should include the cost of the land and other associated expenses such as survey costs, closing fees, and taxes. Additionally, consider the long-term costs of owning land, such as insurance, land rates, and maintenance.
Next, figure out how you will finance the purchase. Where will the money to buy the land come from? Here there are multiple options to consider depending on your financial situation. You can use your savings, liquidate your investments, or take a loan such as a mortgage or construction loan.
3. Hire A Reliable Conveyancer.
Buying a home is a lifetime decision that involves many steps requiring expert advice and assistance.
Therefore, before entering the market, you should consider hiring a conveyancer—someone specially trained and qualified to oversee real estate transfer from one person to another smoothly. These individuals should ideally be licensed real estate lawyers or agents.
While much information is available online, nothing can replace professional expertise. A certified conveyancer can provide you with insights into current market conditions, access to undisclosed inventory, assistance in organizing your paperwork, help you secure the best land options within your budget, and, most importantly, protect you from potential fraudsters.
4. Identify The Land You Want To Buy.
Since you have a budget and know the type of land you want, it is time to go to market and find one that aligns with your needs. Those two factors will typically determine the location, topography, and size of the land you should buy.
There are multiple ways you can find land on sale. You can start your search online, let a real estate agent guide you, or ask for recommendations from friends and networks.
Once you have found a land on sale, conduct a site visit to help you know the area's economic and social infrastructure. Site tours will help you understand and appreciate the neighbourhood, geography, utilities, and other preferred features.
The next step is to meet the seller to learn more about the property and kickstart the initial negotiations. The seller should be able to answer all your questions regarding the land type, the tenure/ownership system, and the asking price. Finally, they should disclose encumbrances if there are any.
If you are satisfied, ask for a copy of the title deed, survey maps, land rate clearance certificate, and any other important document you will need to conduct your due diligence. Your lawyer/agent will typically know everything to ask for.
For instance, if you are buying land from a third party, your lawyer will ask them to produce a power of attorney register to show they have the right to do certain or all transactions involving the land on behalf of the proprietor.
5. Conduct A Title Search At The Land Registry.
Conducting a title search means making an application to confirm the ownership details and other interests registered on that land at the Land’s Ministry.
A search will assist you in ascertaining the property ownership and the authenticity of the title deed and identifying the conditions, caveats, pending rates, or any encumbrances on the title.
You can conduct a title search at your local Land’s Ministry office or online through the ArdhiSasa Portal.
Typically, you will need a copy of the title deed of the land you intend to buy and copies of the identification documents of the seller (ID and KRA PIN) and your identification details too.
If you are obtaining the search online, the process will take less than ten minutes, while a search at your local land’s office can take up to three days.
If you are conducting a manual search at Lands Ministry, make sure to involve your lawyer/agent. Be cautious of conmen who collude with government officers to falsify land details and mislead unsuspecting buyers into paying for non-existent land or doing double allocation.
6. Do Your Due Diligence.
Once you receive the search results, your lawyer can help you read it. The land search results will contain info about who owns the land (plus ownership history), the location, the size, and if there are any caveats associated with it.
Use this information to start your due diligence to ensure that the seller is legit and the land is clean—free of any encumbrances.
Two of the main encumbrances you should be on the lookout for are claims on the land that take the form of surety in a legal dispute or collateral for a bank loan.
If the land is subject to a legal dispute, you should avoid it and wait for the claim to be lifted. If it has been used to secure a loan, make sure to involve the lender in the transaction if you decide to buy it.
Next, make sure that the land has no pending land rates. The seller should clear any rates owed to the government and give you a clearance certificate if they haven’t already. Visit the local land ministry to ascertain the authenticity of the certificate.
The final step is to make verification on the land. Visit the lands office and obtain a surveyor's map of the land you intend to buy. Get a government surveyor and visit the land to authenticate everything on the map and ensure there are no boundary disputes with neighbours.
7. Make Your Offer And Sign The Sale Agreement.
So you’ve done your homework and have decided to make an offer; how should you do it?
The first thing you should do is perform an independent appraisal. During the initial negotiations, the seller probably gave you a starting price.
An appraisal at this juncture will tell you if the land is worth the price they named and is typically conducted by an appraiser who will perform market analysis. This step is vital for two reasons:
It helps determine the accurate market value of a property so that you can avoid overpaying.
It helps prevent undervaluation fraud. - If the seller is selling the land at unrealistically low prices, you should think twice before you part with your money.
After the land has been appraised, meet with the landowner, present your offer, negotiate, and agree on the final price.
Finally, ask the seller to draft a sales agreement that outlines the terms and conditions you have agreed upon.
Remember that this document is legally binding; therefore, have your lawyer review it before you sign it. Typically, the agreement will contain:
The names and ID numbers of the land seller, buyer, and witness(es)
The price agreed upon and the payment terms.
The description of the land
Land transfer process and charges distribution, i.e., which party is responsible for paying the land transfer fees, including title deed transfer, stamp duty charges, and other fees.
Terms of breach of contract.
The sale agreement is important for two reasons: it will legally protect you if the seller fails to honor their part of the agreement and prevent you from being conned or short-charged.
Iron Out the Legalities.
Before you complete the purchase, there are three more important actions you need to take to ensure the sale can proceed smoothly and without any legal complications.
They include:
Getting Relevant Approvals: Depending on the type of land you are buying, you might need to involve other parties in the transaction and get government approvals.
For instance, if you are purchasing agricultural land or are a foreigner leasing land, you need to get approvals from The Land Control Board (LCB). Additionally, if you are buying matrimonial property, you must get both spouses' approval.
Pay Stamp Duty: Here, you will first need to obtain a second land valuation from a government evaluator. They will inspect the property and compile a report endorsing the value of the land.
After that, you will need to pay the stamp duty, and the rate is 4% of property value for urban lands and 2% for rural lands.
Get All Documents In Order: With the help of your lawyer/agent, you will compile all the relevant documents and double-check everything.
The seller will do the same and give you a notice indicating their readiness to complete the transaction.
8. Complete Payment And Initiate Title Transfer.
This is usually the most important step and one that requires you to be very cautious.
At this stage, the seller will apply for and obtain a consent to transfer from the National land commission. They'll present you with the letter, and both of you will be required to sign it.
Once you have signed the form, the seller will give you all the relevant documents, including the original title deed, the signed and filled transfer forms, the land rate clearance certificate, and copies of their ID cards.
Upon receiving the completion documents from the seller, you will be obliged to pay the seller the total purchase price to complete the transfer.
Ensure that you avoid cash payments to maintain a trail of paper. Ideally, you should pay via a bank transfer to the seller's account.
9. Register The Land And Process A New Title Deed Certificate.
After signing the consent to transfer forms and paying for the land, you should lodge stamped transfer documents for registration at the local land office.
You need to pay for the registration fee, which is Ksh500, fill out a registration form, submit all relevant documents and receipts that were involved in the buying process, and wait for two to three weeks for the transfer to be verified and a new title deed to be processed.
You will then receive a new title deed showing that ownership has been transferred to you and the old title deed has been destroyed.
Once you receive the title and it is in your name, you should confirm that the land records accurately reflect your updated information and ownership status. You should do this by obtaining a search at the Land Registry. Finally, ensure the transfer is complete on the ArdhiSasa portal as well, and register the parcel in your name.
