In the realm of Conveyancing and other Land transactions, the notion of regulation can be in various forms, the most common type is where parties are required to obtain various Consents and Certificates.
The process of obtaining these consents and certificates forms one of the preliminaries of Conveyancing like execution and attestation of documents. While most of the Land Laws have been repealed, the process of acquiring these consents and certificates largely remains unchanged. This Article seeks to provide an understanding of the various certificates and consents required in Conveyancing transactions and their statutory underpinnings.
- Government Certificates
The two main types of clearances sought include Land Rent Clearance Certificate issued by the National Government and Land Rates Clearance Certificate issued by the relevant County Government where the Land is situate. The Rating Act (Cap 267) and the Valuation of Rating Act (Cap 268) provides the basis for which rates get charged by the Local or County authority. It is important to note that Land Rates are applicable for both freehold and leasehold properties. Whereas a Land Rent Clearance Certificate applies specifically to areas where the Land is Leasehold.
- Statutory Consents
There are various consents required prior to registration of an interest in Land and they include:
Consent by Chargee: A Charge is generated when a property owner obtains a Facility by using their property as security. The lender in this case is referred to as the chargee and a Chargee has a proprietary interest over the assets charged. This means that the only way the asset in an unredeemed charge may be appropriated and/or transferred is only with the written consent of the Chargee.
Consent by Lessor: This applies to an individual who has obtained a Leasehold from the Government (Head Lessor) and subsequently intends to sub-lease it. The main object of this Consent is to ensure the covenants under the Lease are observed and rents paid.
Consent by Management Company: When there is Independent Ownership of units inside a complex, such as Apartments, office suites, or townhouses, the Management Company or Corporation over the development will usually be required to issue its consent before a Unit Owner can undertake any disposition such as a Charge, Lease or Sale of their Unit.
Land Control Board Consent: Any dealing on agricultural land requires the consent of the relevant Land Control Board. The restricted transactions include a sale, lease, charge or sub-division of agricultural Land. An owner must therefore be informed of the relevant board for the area in which their property is located, as well as the dates on which the board meets so as to obtain the Consent. Under section 9(1) of Land Control Act (Cap 302) Laws of Kenya, the Land control board is obliged to refuse consent in any case in which land is to be disposed of to a person who is not a citizen of Kenya or a private company all of whose members are citizens of Kenya. This in effect prohibits persons who are not Kenyan citizens from directly acquiring an interest in agricultural land.
Spousal Consent: When undertaking Property transactions involving Matrimonial Property, Spousal rights are considered to be an overriding interest on land and as such Spousal consent is a mandatory requirement to be obtained prior to any transfer being effected. In cases where the Property does not form part of Matrimonial Property, then a Statutory declaration may be signed confirming the status.
While the above are the most common types of Consents, for some Property Owners, additional consents may apply and they include: (a) Kenya Civil Aviation Authority (KCAA) where developments on the land pose a risk to flight paths; (b) Kenya Airports Authority (KAA) where the Land is close to an Airport; (c) Trustees of National Parks, where the property is adjacent to Wildlife parks, and; (d) Chief Engineer Kenya Railways, where one is acquiring land near a railway line.
Parties should ensure they obtain relevant Consents and Clearances as they offer legal Validity on intended transactions.