Introduction:
Land transfers in Kenya constitute a complex process governed by various legal provisions, ensuring a systematic and regulated transition of property ownership. This article aims to shed light on the legal intricacies surrounding land transfers, focusing on the Land Act and the Land Registration Act (LRA).
Legal Definitions and Scope:
The term ‘transfer’ refers to the deliberate passing on of land, lease, or charge from one party to another through an act of the involved parties. It is a process guided by legal instruments, and the term encompasses the instruments themselves, as defined in Section 2 of the Land Act and Section 2 of the LRA. Additionally, the Land Act specifies that a conveyance or assignment, often in the form of a Deed, effectuates the transfer of ownership, especially in the case of freehold/leasehold properties (Section 43).
Essential Requirements for Land Transfers:
To effect a transfer, certain prerequisites must be met as outlined in Section 27 of the LRA and Section 43 of the Land Act. These include consideration (with or without gifts), an instrument in the prescribed form or one approved by the Registrar, and the subsequent registration of the transferee as the proprietor of the land, lease, or charge.
Immediate Effect of Registration:
Section 44 of the Land Act stipulates that transfers take effect immediately upon registration. This is a crucial point, emphasizing the significance of registration in not only recording the instrument but also transferring the rights of ownership to the purchaser. The types of interests capable of being transferred encompass freehold, leasehold, sub-leases, charges, and profits a pendre, among others (Section 37(2) of the LRA).
Prescribed Forms and Approval:
Several prescribed forms exist for different types of transfers, such as freehold, leasehold, charges, and interests outlined in Section 37(2) of the LRA. Any deviation from these forms requires prior approval from the Registrar, as specified in Legal Notices No. 143-146. Both parties involved in the transfer must sign the prescribed form.
Registration and Issuance of Certificates:
Crucially, a transfer does not complete until the transferee is registered in the Land’s Registry. Upon registration, the purchaser is issued a Certificate of Title for freehold properties or a Certificate of Lease for long-term leasehold properties, in accordance with Section 26(1) and Section 54(5), respectively.
Provisions and Requirements under the Land Registration Act:
The Land Registration Act outlines key provisions governing land transfers, including:
- Requirement for an instrument in the prescribed form (Section 43(2)).
- Completion of the transfer process after registration at the Land’s Registry (Section 43(3)).
- Mandatory adherence to the provisions of the Land Registration Act in all dealings (Section 36(1)).
- Prohibition of contingency or conditional transfers (Section 40).
- Effectiveness of transfers only upon registration (Section 43(2)).
- Endorsement of signatures of persons outside the country in the prescribed manner (Section 44(4)).
- Submission of additional documents when effecting a transfer (Section 44(5)).
Stamp Duty requirement :
The transfer instrument must be stamped within 30 days of execution and lodged for registration within three months from the date of the instrument. Therefore, it is advisable to leave the instrument undated until the parties are ready to perfect it. (See: Section 6 of the Stamp Duty Act, Section 36 LRA)
Transfer of a Lease and Transfer of a Charge:
Specific provisions under Section 45 of the Land Act and Section 71 of the LRA address the transfer of leases. Similarly, Section 86(1) of the Land Act provides for the transfer of a charge, detailing the necessary steps and requirements.
CONCLUSION
In conclusion, understanding the legal frameworks and provisions governing land transfers is essential for all parties involved in such transactions. This knowledge ensures compliance with the law and facilitates a smooth and legally valid transfer of property ownership in Kenya.
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Disclaimer
This article is for informational purposes only and should not be construed as legal advice.
