| LAWYERS | NON-LAWYERS |
Sanctity of title means a title document issued by a land registrar (the State) shall be taken by all Courts as prima
facie evidence that the person named as the proprietor of the land is the absolute and indefeasible owner subject
to the encumbrances, easements, restrictions and conditions contained in the Title. This essentially means that an
innocent buyer who purchased a property and was legally issued with a title deed by a land registrar is the rightful
owner even if there were irregularities or illegalities in the initial allocation process. This is closely linked to
indefeasibility and inviolability of title. Indefeasibility of title means that the register is the definitive record of all
land interests, and thus, the registered proprietor is immune to claims contrary to the register.
| The purchaser’s Advocate has to ensure that the title issued to them by the vendor’s advocate is valid and all the due processes were followed to avoid the title being voided if the procedures undertaken prior to its issuance did not adhere to the legal requirements. | Individuals purchasing property in good faith cannot depend solely on the concept that a title is immune to challenge if the initial land allocation was carried out in an unlawful or improper manner. |
Prudence and diligence is usually done through investigation of title which determines whether client is ultimately
going to acquire a good marketable title.
| The Torrens System is no longer applicable. This means that not only should an official search be done on a title but also a pre-contract enquiry, historical search, personal search and requisitions. NB: -The historical search was prompted by the Ndugu Report of 2004 into illegal allocation of land. For one to have access to the correspondence file, one needs to write a letter to the land registry and access is granted. The correspondence file contains details about origin of each parcel of land from the initial allotment to any subdivisions. The parcel file (for the Registered Land Act or deed file (for Government Land Act and Registered Titles Act) are the respective registers containing details of property in question. -Requisitions are such objection on queries arising from perusal and deduction of title documents. This includes questions directed to the vendor’s advocate relating to the tenure of property, identity and description of the property, execution of title documents. The purpose of requisitions is to help give the purchaser title in accordance with contract of sale. Condition 6.2 LSK Conditions of Sale provide for requisitions and objections to be made after contract has been executed and, in any event, not later than 14 days. | In the future, prospective buyers and genuine investors will need to exercise a heightened sense of care and thoroughness. They should meticulously examine the background of a property’s ownership, tracing its history from its original allocation to its present possessor. This meticulous investigation is essential to verify its legality and authenticity prior to any purchase commitment. In fact, in order for a property title to be unquestionably secure, the buyer will now be required to demonstrate that the entire allocation process and subsequent ownership transfers adhered to proper regulations and laws. Simply conducting a standard search at the Ministry of Land will no longer suffice; instead, buyers must delve deeper and obtain an officially certified confirmation. To learn more about what a certified green card is and what it entails, click here https://propertyboutique.co.ke/a-comprehensive- due-diligence-checklist-on-land-transactions-a-step-by- step-guideline/ |
| Advocates have the burden to “go to the root of the title” to establish title. This is to ensure that if one is a purchaser’s advocate then it is his/her burden to establish that the title being transferred is a valid title. | The responsibility of demonstrating the legality and authenticity of a title falls on the purchaser. Mere possession of a registered lease or title does not suffice. The complete allocation process must have been legal and in conformity with the stipulated procedures for the title to be considered invulnerable. To benefit from the defence of that one is a bona fide purchaser of land, a purchaser shall now be required to take such steps as necessary to investigate the history of the land and “go to the root of the title” as opposed to simply concluding that the title held by the seller is evidence of the seller’s absolute and indefeasible title. |
| Financial institutions now have to investigate the validity of title to ensure their monies are secured by a valid title. The ease of doing business entrenched under the Torrens Land Registration System and the concept of bona fide purchaser for value acquiring and indefensible title has evaporated. | There will be delay in granting loans to individuals as financial institutions will have to do a thorough search to ensure that the title belongs to the individuals being granted loans. |