@ Marty,

Great read and keep it up. Few comments,

6th Sense : Women are great at it- if your mother ever told you to keep off a girl, you better. I normally trust my wife's 6th sense and never go wrong. One time i though i had a plot deal until i run it through her only for her to tell me-- that place is not even demarcated!

Tyranny of the budget: Once one has developed financial discipline, i find budgeting to the cent quite tedious. I personally prefer "block budgets" and leave out details.

Keep them coming

Understand that Agreement: PART 2

Continued………..

“The sale is subject to the Law Society Conditions of Sale (1989 Edition) in so far as they are not inconsistent with the conditions in this agreement.”

The LSK Conditions of sale (1989 Edition) are boiler plate set of conditions to aid in drafting of agreements and guide the sales and conveyancing process. They outline how critical matters are to be dealt with including:
• Deposits
• Completion
• Possession
• Apportionment
• Interest on purchase money
• Objections and requisitions
• Rescission
• Easement, Liabilities
• Consents
• Subdivision
• Notices
• etc

Default clauses
These are meant to protect the parties in case of default. In the event the vendor defaults, common practice is to return the deposit paid by the purchaser mostly with some interests guided by the market rates.

In the event of a default by the purchaser, the vendor is entitled to serve the purchaser with a 14 day notice and when the same expires, the Vendor at his sole discretion has the option of either extending the completion period or rescinding the agreement in writing.

Rescinding of an agreement: It basically means to declare a contract void—of no legal force or binding effect—from its inception and thereby restore the parties to the positions they would have occupied had no contract ever been made. In the event this happens due to failure of the purchaser to comply, then the purchaser loses the 10% deposit.

Completion
This is usually done by way of exchange of completion docs and balance between Vendor and purchaser respectively or upon successful registration of the transfer in the name of the purchaser.

Another common practice of late is signing on every page for the vendor and the purchaser just to make sure that a malicious party does not pluck out unsigned pages and replace them with unfavorable conditions or different content.
For the agreement to be valid, a Certificate to identify the vendor and purchaser, must be done by an advocate.

Another condition of late relates to simply stating who drew the agreement. “Drawn by”
Is an agreement which has not been witnessed by an advocate legal? Yes if there is a witness. However, the transfer documents must be certified by an advocate licensed to practice. Also certification of the other docs as true copies of the origin must be done by an advocate /notaries public.

Who is this notaries public? A person legally empowered to witness and certify the validity of documents and to take affidavits and depositions. Wow..and what is an affidavit? A written statement of facts voluntarily made by a person under an oath or affirmation administered by a person authorized to do so by law.

Arbitration of disputes
In the event there is a dispute between the parties over the agreement, they should issue a notice of 7 days to each other with a copy to their witnessing advocate who shall within 7 days invite both parties to a joint meeting and may arbitrate any disputes and his decision is binding and can only be reviewed by an arbitrator appointed by the two parties but in the event they cannot agree, then an arbitrator will be appointed by the Chartered institute of Arbitrators to arbitrate the dispute.

And what is power of attorney: A written document in which one person (the principal) appoints another person to act as an agent on his or her behalf, thus conferring authority on the agent to perform certain acts or functions on behalf of the principal. This means you can grant a person authority to act on your behalf and that includes the sales process. A power of attorney generally is terminated when the principal dies or becomes incompetent, but the principal can revoke the power of attorney at any time.

Enough of the agreement and the legal jargon. Next we will look at the subdivision process…

Tafadhali tuma hapa gits31@ymail.com . Asante.

Kindly inbox ilikeyou.ke{at}gmail{dot}com

The subdivision Process

We shall base the info herein on a subdivision of a freehold title.

Before you subdivide any land, you must get the consent to do so from the Land Control Board. Ideally the consent is issued upon the proprietor appearing before the Board. Notice that all land transactions are controlled. However, we all know that in Kenya, we may not necessarily appear before the board, but we can get what they call ‘Special Board’. I have put it in quotes because the concept is illegal. In fact what happens is that the consent date is backdated to the last Board sitting.

I once attended that board when I wanted to sell a plot in Ruiru. Those wazees really harassed my madam and I. “Kijana, kwa nini unauza shamba na wewe ni mdogo sana?”, they asked. I told them that I have other plots and I sell plots as a business. “Wapi bibi”, one retorted. I was with my significant other so I pointed at her. “Huyu sio msichana umeokota mahali?”. I produced the marriage cert and she produced her ID. They asked her “Na wewe unakubali mzee auze shamba mkae wapi?” She said she is OK with it and that is when they accepted. I swore never to return there. The wazees are famed at dismissing would be sellers unceremoniously. By the way, the idea behind the Land Control Board is noble especially to protect families from wazees who just sell land and leave their families desolate. Back in the village it is a common problem where fellows are selling inherited land and run away with young girls to squander the money only to return once the cash is over.

Once the consent is granted, the surveyor prepares the development plan on paper. The plots and access roads are earmarked and drawn to scale. Once the planning on paper is complete, the rest is to be done on the ground i.e. placing the beacons. Of course there are requirements that guide surveying including the width of the access road, minimum sizes and others.

Ideally, the proprietor is supposed to be present when the beacons are being put on the ground. Once the beacons are in place, a mutation form is filled in triplicate. The content of the form are as below:
1. Title number (mother title) and approximate area. (page 1)
2. Registered proprietor instructions to the surveyor on how they wish the land to be surveyed. (page 1).
3. Sketch or development plan which ideally should be filled by the proprietor(page 2)
4. Field diagram and observation on site with measurements to scale. This is normally filled by a licensed surveyor.

Once the mutation is filled and the proprietor has signed the 3 copies, they are presented to the district surveyor whose role is to approve the subdivision and allocate Land Reference numbers (new numbers to the new plots). The numbers are normally allocated serially based on a particular block of land. So the District Surveyor will just check from their records the last number issued for that particular block and allocate the new plots the numbers that follow.
The District surveyor then forwards a copy of the mutation to the registrar confirming that the survey work has been carried out and therefore the registrar can issue title deeds based on the LR Numbers already allocated by the DS. The DS also forwards a copy of mutation to survey of Kenya for purposes of amending the RIM (Registry Index Map).

Once the registrar receives the mutation, they open a green card for each of the new titles, issue a title for each of the new plots and then file the green-cards in the respective binders. The Proprietor then receives the new titles.

The Process gets is far more complex and trickier and expensive when subdividing leased land.

By the way, when someone tell you that they have subdivided their land and all they are showing you are beacons on the ground, ati titles ziko njiani, please take note that they may just have done the easiest part of the process.
What is astounding is how land buying and selling companies take forever to process titles and ordinarily it is a process that takes 4-6 weeks. Land buyers need to be more careful and insist on buying land whose titles are ready.

Next post we will try and explain the sizes of plots. Someone once asked me what 1/8th acre is? Is it 50 by 100? What is this hectare thing? We can also look at land tenancy