Conveyancing is an essential process in real estate transactions, involving the transfer of legal property or modification of property interests through formal documentation. This intricate procedure encompasses several key elements, including the process itself, the legal title, and the actual transfer or modification of property rights. In this blog post, we’ll delve into the essential aspects of conveyancing, highlighting the necessary legal formalities, stages, and registration process to ensure a smooth property transaction.

The Formality of Writing in Conveyancing

One of the foundational requirements in conveyancing is that all contracts involving the disposition of an interest in land must be in writing. According to Section 3(3) of the Law of Contract Act:

“No suit shall be brought upon a contract for the disposition of an interest in land unless the contract upon which the suit is founded: (i) is in writing; (ii) is signed by all the parties thereto; and (iii) the signature of each party signing has been attested by a witness who is present when the contract was signed by such party.”

This section also notes exceptions for contracts made in public auctions by auctioneers and does not affect the creation of resulting, implied, or constructive trusts.

Additionally, Section 44(1) of the Land Registration Act (LRA) mandates that any instrument affecting a disposition must be executed by all consenting parties, either by signature, thumbprint, or other marks indicating personal acceptance.

Stages in the Disposition of an Interest in Land

The process of disposing of an interest in land typically occurs in two stages: the contract for sale and the conveyance.

1. Contract for Sale Stage

Initial Client Interview: Before forming a binding contract, an advocate conducts an initial client interview. This interview gathers all relevant facts about the transaction and provides critical advice regarding the process.

Investigation of Title: This involves ensuring that the property has a good marketable title. Three primary methods for investigating title include:

• Searches: Enquiries made to government departments to check ownership, planning, environmental issues, and other encumbrances.
• Pre-Contract Inquiries: Physical inspections and evaluations of the property to determine its condition, value, and any potential defects.
• Requisitions: Questions arising from the title documents or abstracts to clarify details.

Land Rent and Rate Clearance Certificates: Before registering transactions involving leasehold land, a Land Rent Clearance Certificate and a Rate Clearance Certificate are required to confirm all payments are up-to-date.

Consents: Various consents may be needed, depending on the transaction, including approvals from the County Land Management Board, Land Control Board, Kenya Airports Authority, and lessor’s consent for sub-leasing.

Execution & Attestation: Once all checks are completed, the sale agreement is executed and attested. Execution involves signing or marking the document, while attestation ensures the witness is present during the signing to prevent fraud.

Verification: Under Section 45 of the LRA, verification involves presenting the executed instrument to a Registrar or public officer for identity confirmation and voluntary execution.

2. Conveyance Stage

The conveyance stage is where the actual transfer of interest in land occurs and is only effective upon registration. While the contract for sale binds the parties to the agreement, it does not itself confer any interest in land.

Formality of Registration in Conveyancing

Conveyancing is considered complete only after registration. The registration process involves recording land transactions in the Lands Register, covering both the title and any related instruments. Key purposes of registration include:

• Enabling government tracking and revenue collection.
• Simplifying land transactions and ensuring title security.
• Reducing litigation related to land disputes.

Registration Process Includes:

1. Valuation Forms and Stamp Duty: Complete valuation forms and pay stamp duty at designated banks.
2. Document Lodgment: Submit documents in duplicate with all required certificates, including original title and consent forms.
3. Document Review: The document is reviewed for correctness, audited for compliance, and matched with deed files.
4. Registration Execution: The Registrar verifies and signs the document for official registration.

Post-Registration: The document is photocopied or sealed, and originals or copies are released to the relevant parties.

Duties of Parties During the Transfer Process

Seller:

• Disclose material defects.
• Produce title documents.
• Execute the conveyance upon payment.
• Address encumbrances if applicable.

Buyer:

• Disclose information that increases property value.
• Pay the purchase price on completion.
• Manage property and title documents between contract and delivery.
• Pay all public charges and rent.

In conclusion, understanding the intricacies of conveyancing is crucial for anyone involved in property transactions. From the initial contract to the final registration, each step ensures that the transfer of property is conducted smoothly and legally. For anyone looking to navigate this complex process, seeking professional legal advice is highly recommended to ensure compliance and avoid potential pitfalls.