Signs that you are dealing with a fraudster

A day never passes without reports that somebody has been conned while buying property, yet this should be one of the most fool-proof processes.

Experts in the sector agree that you need to check, check, and re-check the offer, scrutinise it with a legal mind, and get assurance from the Lands ministry that you are not being fleeced.

But it is not easy when you do not know where to begin.

Peter Gitau, a property manager, tells Immaculate Wairimu when to run for the hills and when to sign on the dotted line.

Land, it has been said, is one of the most valuable assets and a central factor of production.

Without it, many feel incomplete and unstable, which explains the current craze to own a piece of Earth, no matter how small.

That craze has also attracted those who live on the wrong side of the law. Reports abound of people who have been conned through bogus land transactions.

The question, therefore, remains: How sure are you that the piece of land you are buying belongs to the person selling it?

When dealing with something of such importance, you see, you cannot afford to assume that all will be well, that the person you are dealing with, no matter how honest and sincere he or she seems, is not conning you.

Peter Gitau, the managing director of Peter’s Plots, a land buying and selling company based in Nairobi, says the issue of land, its ownership, use, and management are highly sensitive in Kenya.

Land purchase, he says, is probably the most complex and time-consuming process you will ever undertake, so that means you must “look beyond what you see” and “examine what is not obvious”.

“Like with all fraudulent deals,” says Gitau, “there are always warning signs to look out for, and if your gut feeling tells you to run, run!”

Though statutory requirements demand that one seeks professional help, when it comes to drafting the sale agreement, doing the land title searches, conducting a valuation study, and filling land transfer forms, people still find themselves falling into the trap of fraudsters.

1. He said I represent him: There is especially an increased risk of fraud, for instance, if a parcel of land situated between public institutions and has been vacant for a long while other plots in the area are for sale.

Also, when the owner of a piece of land is absent or resides out of the country, impostors take advantage of this to make a quick, illegal buck.

In addition, if a land owner is infirm or incapacitated due to illness, the risk of his or her property being sold unknowingly is high.

For matrimonial property, there is a great risk of sale without the other spouse’s consent when the relationship breaks up, says Gitau.

2. Naaah, that’s just a typo: If the name on the title deed does not match that on the identity card, even when they are explained as typos, be very careful.

A slight difference in names could mean that you are dealing with two different people.

If, for example, the name on the title deed reads Antony Imani Baraka while the identity card reads Antony Baraka Imani, the prospective buyer should seek a second opinion from a lawyer and the lands registry before getting into an agreement.

When there is an omission or addition in any name, like if the identity card bears the name Antony while the title deed carries the name Anthony, the missing “h” in the identity card and the “h” in the title deed could also indicate different persons.

There are instances, though, where this is an honest mistake, but that should be left to a lawyer to clarify through sworn affidavits.

3. Two titles for you, Sir: If the piece of land has more than one title deed, run and do not look back.

Seek a refund of your deposit immediately as trying to hold on to the deal and solve such a case is setting yourself on a path of endless legal tussles and financial ruin.

4. Mum says we can go ahead: If the owner of the land is deceased and the children are selling you the land, it is mandatory that the process of succession be followed.

This involves filing of documents at the Lands Registry to inherit the estate of the deceased.

It is, therefore, important to ensure that the property you are buying is registered to the person selling it as he or she may also be selling it behind the back of the other siblings, and this often leads to disputes that result in long court battles.

The country’s courts are awash with such cases pending determination and the new laws require that all land in Kenya, whether private, public, or communal, be registered and its records made accessible at every county’s land registry.

A report from the registry will shed light on whether the land you want to buy is available or if it belongs to someone else.

If a search at the registry does not show the land you want to buy, the property may not even exist.

The registry maps should also not have a different number from that on title deed.

5. It’s mine! No, it’s mine! : If there are ownership wrangles reported over a piece of land, it might be a wise idea to search elsewhere as the wrangles may drag on for years.

Ensure that the land you are about to buy does not have encumbrances such as caveats, notices that someone else claims an interest on the property, family wars, or issues with its documentation.

While a potential buyer may only seek to confirm whether the title deed is valid, they should also seek to have both spouses’ consent before the discharge of the property as lack of it may lead to another wrangle with the scorned spouse.

For family property, the new land laws state that, among other things, a spouse is deemed a co-owner of a property even if his or her name does not feature on the title deed.

That means that, where land is held in the name of one spouse “but the other spouse has contributed to the productivity, upkeep, or improvement of the land”, the contributing spouse is recognised as having acquired an ownership interest in the land.

Therefore, one spouse cannot sell, transfer, lease, or charge the land without the other’s consent.

6. This is prime property! : When the land being sold seems too close to public, government, or industrial property, conduct thorough searches first.

For instance, if the parcel sits near a railway line, road reserve, government institution such as a school, a national park, or even a police station or army barracks, then it automatically becomes a suspect purchase.

Also, if the land is between an airstrip and a national park or a public school and another government institution, ask yourself why this particular parcel was left idle while the surrounding area was developed.

7. Please co-sign on the dotted line: For jointly owned land, all parties should be available during the transaction.

If one party is missing, this ought to raise some questions about the legality of the deal and why the other party is absent.

Of course in many cases there is a good reason why not all parties cannot be available.

In other cases, the parties send their agents to represent them at the lawyer’s office during the transaction.

8. I will give you an allotment letter: When the land is under an allotment letter but the mother title is not being provided, be very careful as it is likely that the title may have been charged to a bank against a loan or the details on the title do not match those on the allotment letters.

Be particularly averse to allotment letters as these are simply a private arrangement among a group of members and, therefore, cannot be used as legal ownership documents for a piece of land.

The best way to deal with allotment letters is to demand that your title be processed immediately you pay the final instalment for your land.

If such a demand cannot be met, you are better off looking for land with a title.

Local authorities were initially mandated to issue allotment letters and there are council by-laws to guide the process.

Therefore, private land buying companies that continue to issue such letters do so without any laws to protect their buyers or members.

9. From here to there... and there: Every parcel of land has to have physical planning maps or mutations.

Verify with a surveyor and ensure that you see the beacons that mark all corners of the land you are about to buy.

If a beacon is missing, insist that the owner gets a survey to re-establish them.

10. What legal Act is that again?: Though we are told never to judge a book by its cover, when it comes to land transactions, there is an exception.

If the agent selling the land does not look like one, even if they sound convincing to you, it is always better to walk away.

The agent or broker may also look the part, but if he or she does not seem to know the ins and outs of the area he is selling the land, he may likely mislead you into buying a problem.

When an agent is unwilling to give you direct communication with the owner of the land, or if there are too many agents and brokers dealing with you on the same parcel of land, or there are inconsistent answers by the seller to your questions, think twice.

If they are unwilling to introduce you to family, friends, or neighbours, it may mean that he or she does not want to be traced after the transaction, does not want his family to know he is selling land that may be a family parcel, or is selling someone else’s land without the legal owner being aware of the transaction.

11. Let’s meet at Kwa Maiko Pub and Lodging: Legal land transactions should also be done in an open and transparent manner.

If a transaction is being carried out in a dodgy location, such as temporary corrugated iron sheet site houses, on the “13th Floor” of the Ministry of Lands at Ardhi House (Ardhi House, by the way, has only 12 floors), or through a “land buying company” that does not feature as registered anywhere, it would definitely indicate a fraud.

Also, all companies selling land should have registration certificates issued by The Registrar of Companies located at Sheria House.

12. It’s the best deal you will ever get: Always remember that when a deal is too good, think twice.

Considering the location of the land, discerning home owners should ask themselves what the pricing of other parcels in the vicinity are.

Different areas have diverse land prices, but if the quotation given for the land you are about to buy is suspiciously low for that location, do not take it as your lucky day.

If you do not investigate through the Land Registry and the locals, then it would be the luckiest day for the fraudster selling you the land.

In addition, when you are being rushed into making a hefty deposit, think twice. In Kenya today, buyers are being pushed to pay at least 10 per cent of the value of the property beforehand, sometimes without even seeing the property.

It gets trickier when buying off-plan. When paying a deposit, do not go it alone, ensure that you first see the property and sign the agreement in the presence of a lawyer only if you are satisfied with it.

If photocopies of maps, plans, titles, and other documents are not being provide to you for your search, it may be a sign that the transaction is deceitful and the seller does not want you to find out.

Every piece of land must have a map stored at the district surveyor’s office.

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