29/03/2020
Buying real property in Kenya especially in this day and age is not as easy and straightforward as it seems to many people. The need to exercise all possible due diligence cannot be underestimated. As a land and conveyancing law attorney, I have taken liberty to provide the following PURCHASE OF PROPERTY INFORMATION CHECKLIST:
1. Have you conducted a title search and verified the legal description for the property?
2. After reviewing the title search, have you determined who the registered owner of the property is?
3. Does anyone not registered on the title to the property have an interest in the property (e.g. spouse or tenant)?
4. Have all the property owners signed the Sale Agreement?
5. Have you conducted a search on the National Identity Card of the Seller or in the case of a company on the Certificate of Incorporation and National Identity Card of the Directors to confirm that the owner of the property is the real owner and not an impostor?
6. In the case of a corporate entity, has the person signing the Agreement confirmed they have the authority to act on behalf of the corporation?
7. Did the title search disclose any:-
(a) Restrictive covenants, statutory rights of way, easements, leases, caveats, pending litigation, tax notices, other notices or endorsements? or
(b) Financial encumbrances, such as mortgages or other financial charges on the title of the property?
8. Have you determined whether any of the encumbrances (an encumbrance is a claim against, limitation on, or liability against a property) may:-
(a) Restrict the seller's ability to sell the property? or
(b) Pose any difficulties clearing the title?
9. Have you:-
(a) Asked for the deed plan?
(b) Viewed the property in person?
10. Has there been recent construction, renovations or improvements? Were the necessary or appropriate building and/or occupancy permits obtained? If so,
(a) Were the necessary building and/or occupancy permits obtained?
(b) Has final inspection and approval of any renovations or improvements been obtained?
11. Have you ascertained the following:-
(a) What are the property boundaries?
(b) Whether the size of the property stated in the title or lease document is the actual size of the property?
(c) Whether the property contains or is adjacent to any watercourse (e.g. stream, river, pond or lake, wetland, ocean foreshore)?
(d) What is the use of the property and does it comply with zoning?
(e) Are there any access issues?
(f) What utilities are available (e.g. electricity, water, internet and garbage collection)?
(g) What is the quality and quantity of the water supply?
(h) Is the property connected to a public sewer system or is there an onsite wastewater treatment system?
(i) Will the use of the property be affected by the National Museums and Heritage Act?
12. In case the property is occupied by a tenant(s):-
(a) Have you determined whether there are any tenants occupying the property?
(b) If so, have you received a copy of the tenancy agreement?
(c) Have any amendments or variations been made to the original tenancy agreement?
13. Other issues to be aware of:-
(a) If the property is leasehold have you obtained the current property land rent information?
(b) Are there any municipal levies that are payable i.e. rates?
(c) What is the rate of stamp duty applicable on transfer of the property?
(d) What consents are required in order to transfer the property?
(e) Are there any other payments, levies or taxes applicable to the purchase of the property e.g. service charge deposit, formation of management company, purchase of one share in management company and electricity and water deposits.
