The process to purchase land roughly consists of 2 parts:
- You carry out inquiries to ascertain the status of the land and the seller in relation to the risk of existing competing and overlapping interests and;
- You conduct the process of the purchase itself.
In conducting a search, you as a prospective buyer shall do the following;
STEP 1: Request particulars (detailed description to be found in the certificate of title) of the land from the seller:
- the land must have a block and plot;
- make sure to know all the details of the registered owner (name, address, etc.)
- the location of the land must be made clear to you,
- you need to know the area/ acreage etc.
The purpose of the particulars is to enable an intending purchaser to cause a search at the relevant land registry to confirm not only the ownership but also the existence of a white page/registry file with corresponding particulars like those on the certificate of title.
Currently, it is possible to actually compare not just the names but also the physical likeness of the proprietor, as passport size photos are used these days and helps to weed out fraudsters using forged land titles albeit with the same name.
STEP 2: Site visit to the Land/Property;
A site visit is significant not only because:
- It familiarises you, the purchaser, with the property in question and the neighborhood that it is located in,
- It offers one the opportunity to gather some information which may not be accessible through the land registry regarding the history of the property. Some of the information can only be got from the locals in the area who know the owner of the property.
- Physical attributes of land are part of the due diligence that the law expects of one. A search at the registry though critical is not sufficient in itself.
- During a site visit, you may interact with the LC of the area to confirm ownership of the property and if there are any disputes in relation to the land.
- You can find out whether the land is subject to spousal consent or if there are any equitable interests on the land.
STEP 3: Conduct a boundary opening (engage a surveyor);
Registered land is usually described in size, specifically it sets out the boundaries and area size. A boundary opening should be undertaken to confirm whether the boundaries are consistent with the particulars of the land. To make sure that all the data (size and description of the property) is correct it is necessary to engage a surveyor. This is necessary in case of fraud and also where there is a mistake/error on the title.
Step 4: Conduct a search at the Land Registry Office;
This step can often be carried out by the buyer’s lawyer (if he/she has one) to help confirm the authenticity of the title in question.
The search is undertaken to help you:
- in ascertaining the right property ownership,
- to find out its genuineness,
- to establish its existence,
- to identify underlying conditions,
- to find out about pending rates or encumbrances on the title.
Before buying, it is also advisable to present the land title before a registrar of titles for verification before entering into any agreement. The registrar is able to verify if the title is authentic. It should be noted that newly issued titles bear a QR code which confirms the authenticity of the title once scanned. With the computerized lands system, the buyer can verify the seller’s details at the land registry including his/her appearance to avoid impersonation.
Once the buyer is satisfied with the findings of the due diligence and is ready to proceed with the purchase, a sale agreement has to be prepared by a lawyer, preferably the buyer’s lawyer.
STEP 5: Instruct a Lawyer to help you through the whole process;
Lawyers generally have the knowledge to guide the buyer on acquiring good title. They are able to advise on the ‘dos’ and ‘don’ts’ of entering land transactions. You should entrust your lawyer to handle the process of transfer of title to your names. Upon registration, a person whose name appears on the title is deemed to be a registered proprietor.
STEP 6: Prepare the sale agreement and transfer of title;
Your lawyer will ensure that you are being protected at whatever cost. The sale agreement must entail among other clauses, a clause on indemnity incase the seller misrepresents or passes on a defective title. You are encouraged to make payments through a Bank.
STEP 7: Once the sale is concluded, …
the seller must execute and handover a transfer form, his/her passport size photo and copy of the national ID to the buyer.
It is a requirement of the law that the intending seller discloses the consideration (amount) paid in the transfer instrument and consent form and any under valuation of the property by the seller may amount to fraud if it was intended to defraud government of its revenue.
STEP 8: Now the purchaser can claim to have acquired a valid interest in land …
that cannot be challenged and in case of dispute about his/ her title his/ her defence would be that of a legally recognised purchaser.