Conveyancing Sumary

.pdf
School
San Jose State University **We aren't endorsed by this school
Course
ENVS 124
Subject
Law
Date
Mar 25, 2023
Pages
19
Uploaded by BrigadierUniverseCheetah40 on coursehero.com
PRE-CONTRACTUAL STAGE A INITIAL CLIENT INTERVIEW Take instructions S 34 Advocates Act: no unqualified person may take instructions Identify parties What type of transaction Need for independent advice - Spouse ( Barclays Bank v O'brien ) B POWER OF ATTORNEY Def: instrument by which a person appoints another to act for him, including dispositions of land Conditions : The POA must be: 1. executed 2. attested 3. verified 4. registered Revocation 1. Notice: issued to registrar in prescribed form with intention to revoke (Form LRA 8) 2. Interested party may apply by notice in writing that is has been revoked 3. Automatic: death, insanity, bankruptcy, performance, expiry of time 4. POA given for valuable consideration is irrevocable Parties: principal (donor) and attorney done NB: Donee must have capacity and be of sound mind Types: 1. General ( Form LRA 5 ) 2. Specific ( Form LRA 6) 3. Irrevocable ( Form LRA 7 ) NB: An unregistered POA does not take effect C OTHER PROFESSIONALS IN THE TRANSACTION Estate Agent: Identifies parties in a conveyance - vendor, purchaser, lender Must be registered under Estate Agent's Act S 2(3) EAA expressly exempts advocates Land Valuer: Qualified under Valuers Act Role is to value property at current market rate - Important if financed by bank Physical Planner Qualified under Physical Planning Act Control subdivisions and developments within local authorities Architect Qualified under Architect and Quantity Surveyors Act Plan and design the project Land Surveyors Qualified under the Surveyors Act Determine the boundaries and markings Quantity Surveyor Qualified under the Surveyors Act Determine the quantities and costs of matters, labor and time of development D INVESTIGATION OF TITLE Reasons: 1. Caveat emptor 2. Bona fide purchaser for value w/o notice 3. Prudence Significance: To identify : - 1. Encumbrances 2. Who is the registered owner? 3. Title number may be non-existent 4. Size of land not same as that indicated by vendor Pre-Contract Enquiries Searches Requisitions Preliminary issues Touch on the physical condition of the land Vendor only under obligation to disclose patent defects = Importance of physical inspection - Valuers and surveyors - Look for patent and latent defects - Boundaries - Who is in actual occupation? NB: ensure good and marketable title 1. Historical Search At Land Registry to establish history/ownership Shows all transactions that have been done since registration 2. Official/Postal Search Submitted to Local registrar Conducts and issues certificate of official search Reflect a true copy of land register Govt liable in case of fraud 3. Personal Search Inspect relevant register, parcel or deed file available by Land Registry Staff 4. Digital Search Via ecitizen platform Will help establish rightful owner of property - whether any pending issues to ownership of land Shows full name of owner, approximate size of land, any encumbrances Additional searches Ndungu Land Report, Survey, Valuer, Probate Objections/queries after personal of documents e.g. description of property LSK Conditions 6.2 - made 14 days after delivery of title docs If no objections - deemed to accept title 0
CONTRACTUAL STAGE A REQUIREMENTS OF THE CONTRACT Must be in writing S 3 Law of Contract Act - contract for the sale of land must be written All ingredients of a valid contract - Agreement only enforced of there is meeting of minds Execution and Attestation S 38 LA - must be executed and attested by both parties Sale agreement is registered under RDA Drafts and Engrossment: 1. Vendors advocate prepares draft and send to purchaser - include the word "DRAFT" 2. Once approved, prepare the legal document for execution. It is then engrossed B PARTS OF SALE AGREEMENT 1. Parties 2. Recitals 3. Property/Nature of interest 4. Purchase Price 5. LSK Conditions/ General conditions 6. Encumbrances 7. Completion date 8. Registration 9. Registration 10. General Conditions 11. Vacant possession 12. Breach clause - Notice - 21 days - Forfeiture of deposit 13. interest rate 14. Arbitration clause 15. Special conditions NB: Execution and Attestation C DEPOSITS Def: payment of purchaser before execution of K - Part of agreed purchase price LSK Condition 5 implied term: 10% of purchase price (does not include movables, livestock chattels etc.) Amount may be varied but not below 10% Payment ordinarily made to vendors advocate or estate agent LSK = payment made by bankers' draft or cheque Where > 1 million - should be made by RTGS NB: non payment repudiates contract. Nature of Deposits: 1. Security for competition: binds purchaser - removes fear of forfeiture + motive for completion. 2. Non-payment of deposit = fundamental breach. Vendor may rescind contract upon notice 3. Counts as part of purchase price - on completion, purchasers advocate should release deposit 4. Advocate may hold deposit as (i) stakeholder or (ii) agent Capacity of the holder LSK Condition 5 - estate agent or advocate holds as stakeholder. - Agreement may provide it is advocate for vendor As agent - hold deposit for vendor (whether acting for either party) - upon vendors demand - must release to him (unless agreement states otherwise) A stakeholder - hold for both parties in trust: - Pay vendor if sale completed - Pay vendor if purchaser defaults - Return to purchaser if vendor defaults NB: liable to pay if funds mishandled. Amount = client account - neither have claim on interest unless in contract Forfeiture: LSK Condition 4 If breach of contract/unable to complete = deposit forfeited to vendor (even if held as stakeholder) Vendor discharged by may opt for specific performance (deposit would count) Importance 1. Security for completion 2. Reduces burden of paying full purchase price 3. Symbiotic relationship with vendor 4. Purchaser has right over lien of property - enforceable in court D COMPLETION What is completion? Transfer of interest in property in exchange for consideration - Vendor: gives purchaser all registrable docs + possession - Purchaser: completely by paying balance of purchase price "Time is of the Essence" clause = completion date must be strictly adhered to Failure = fundamental breach and burdened party may rescind contract or specific performance If not stated, time becomes of the essence once a completion notice is given - 21 days (LSK Condition 4) Date & Place of Completion Can be expressly provided for in contract Where silent - should be a reasonable period. LSK Condition 2: where not provided 42 days after date of contract Place of completion is ordinarily the vendors advocate chambers Time: 2pm Completion Notice - shall include: 1. Outline breach 2. Demand rectification within notice period 3. Time for performance (21 days) 4. Further default = rescind upon expiry of notice 5. Aggrieved party is ready, willing and able to complete 1
CONSENTS COUNTY LAND MANAGEMENT BOARD The registrar shall not register an instrument unless satisfied than any consent required from County Management Board given Obtained after paying all outstanding land rates and rent Applicable to leasehold properties, not freehold properties COUNTRY EXECUTIVE COMMITTEE MEMBER Physical and Land Use Planning Act S. 57-8: They grant development permission Must notify public in manner told to in order to allow for objections LAND CONTROL BOARD S. 6: Requirement for all land transactions involving agricultural land as defined in S.2 of the Land Control Act and is in a land controlled area Not within municipality or township Legally declared to be agricultural land by CS The consent is granted by the local land Control Board on application by both parties to the transaction. The application is made in a prescribed form and the consent is also issued in a prescribed form exempted if the President so directs it is a transmission or gov is a party The application must be made within 6 months from the date of the transactions. Otherwise, the transaction is null and void Case law Nelson Githinji and others v Munene Irangi. - No consent obtained - Arbitration recommended court to order appellant to transfer to the respondent - On appeal it was HELD, no consent = illegal award Mucheru v Mucheru: The COA held that is LCB consent is not obtained, the transaction becomes void KENYA RAILWAYS For any land adjacent to or adjoining the railway land, Required prior to any dealing on that land Often times there is a fee If a deed plan to a property reveals a railway line running through some parcels of land, this consent will be required in addition to the LCB consent KENYA AIRPORTS AUTHORITY Issued by airport owners for all properties which may be adjoining flight paths. Means to discover intention for the property A person will be given a questionnaire to fill in and must consult before doing anything on the land TRUSTEES OF NATIONAL PARKS Properties adjoining or within parks KWS is the trustee CHARGEE When there is a fixed charge SPOUSAL CONSENT S. 12 Matrimonial Property Act; no land transactions in matrimonial property without consent MP is property i. acquired during the marriage ( S. 2 LRA) and ii. if a spouse obtains an interest during the marriage for co-ownership and use of both spouses ( S. 93 LRA ) s. 79(3) of the LA: A charge over matrimonial home is only valid if spousal consent has been given. Charge instrument should be executed by chargor and the spouse or strong evidence to show consent COMMISSIONER OF LANDS Land Regulations 2017: If land is public land consent of National Land Commission required MINISTRY OF LAND AND PHYSICAL PLANNING Land Regulations 2017, R21 : If proprietor of leasehold wishes to transfer, sublease or create charge Form LA 13 Accompanied by i. Rent clearance certificate? ii. Proof of compliance with lease where applicable 2
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