Published on

By Harold Ayodo

Many prospective home or land buyers do not understand why lawyers insist on conducting a search on the property before commencing any transactions.

Also, because of the extra cost of involving lawyers, many buyers choose to believe what agents tell them about a property.

However, many of these agents turn out to be fraudsters or collude with the property owners to defraud investors.

Some of the investors end up with a sub-standard house or land of far less value than what they bargained for.

Some agents completely disappear with the investor�s money.

What is common about these fake agents is that they do not inform buyers of the need to conduct searches at the Ministry of Lands.

Genuine property lawyers will always insist on carrying out searches as the first step in conveyancing (transfer of property).

A search is an investigation of title of the property to ascertain the registered owner. The search should be done before drafting a sale agreement between the buyer and seller.

Also, before any deposits on the home or land on sale is paid, the seller should officially be confirmed as the registered owner.

It is the responsibility of the lawyer representing the buyer to conduct the search to cushion the client.

The investigation establishes the land reference number, registered owner, registration particulars, encumbrances and covenants. It also establishes whether the property is freehold or leasehold, which determines whether or not land rent should be paid.

Searches can either be personal or official. Personal searches entail visiting the registry and examining the land register.

At the registry, the person conducting the search pays fees (about Sh500), requests for the parcel documents, inspects them and takes notes.

Land registrar

To conduct an official search, the advocate of the buyer makes an application in writing to the Land Registrar and attaches a copy of the title deed or certificate of lease.

The registrar then conducts the search and issues a certified certificate of official search, meaning the Government will be held responsible in case of fraud.

The official searches reflect a true copy of the land register and, therefore, are more valid compared to a personal search.

Also, the official searches, which cost about Sh500 in most land registries countrywide, are more advantageous.

This is because they enjoy guarantee from the State, as it is the government employees who investigate the title and issue certificates to confirm ownership.

It is also possible to undertake a postal search whereby results of the process are sent by mail to the applicant.

However, postal searches are not prudent as the register may be altered by the time the results reach the applicant.

The writer is an advocate of the High Court of Kenya.

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