Why you should know a seller's marital status before buying land

Some want to own land to build a home on; others buy for speculation purposes, and yet others want to own land as a sign of prestige, because as a popular Kenyan saying goes, “mtu ni plot” (owning land is an achievement).

However, just as in any industry where there is high demand, cons find a way to infiltrate it.

There have been a rising number of cases of buyers being conned, with their savings wiped out.

Citizen Digital held a discussion on Twitter Spaces on Monday dubbed, “How to avoid getting conned when buying land”.

A panel of experts gave advice on what to look out for when buying land to avoid running into problems.

A common statement among the panelists was that it is of utmost importance to conduct due diligence before paying for property.

One of the panelists and the chairman of the Association of Construction Managers of Kenya, Nashon Okowa, said many buyers take due diligence lightly and tend to be lazy.

He said, these individuals only wake up from their slumber when a property deal goes badly and they have already lost money.

One of the aspects of due diligence covered during the discussion was the importance of confirming the marital status of the seller, and if the person is married, ensuring the spouse has consented to the sale of a property.

Nkatha Kithinji, an advocate with Ashitiva Advocates LLP, explained that spousal consent to sell is required for all property acquired during the subsistence of a marriage, regardless of whether or not the property is registered in both their names.

 In cases where property was bought before marriage, an affidavit has to be sworn stating that.

However, that is not enough.

“You would need both spouses to swear their own affidavits, and especially the spouse in whose name the property is not registered. The spouse would have to say in the affidavit that the property is not matrimonial property and that he/she does not need consent to its disposition," Nkatha said.  

 Catherine Kinyanjui, a partner with Ashitiva Advocates LLP, also weighed in on the matter.

She said the issue of spousal consent is a thorny one. "The reason why the issue of spousal consent is so important is because the interest of a spouse is considered an overriding interest in whichever circumstance."

"For example, in the event you are purchasing property and the consent of the spouse was not included, or in an instance where you are purchasing property, but you're taking a facility from the bank and there are charges registered over that property. In the event that even the person who is selling the property defaults in making his repayment, when it comes to the bank trying to recover their interest and sell the property and it is discovered that this property was matrimonial property then that interest of the spouse is considered and overriding interest. It overthrows the interest of the bank."

She explained that for instances where a person claims to be married, he/she has to produce proof, and cannot rely on the come-we-stay argument.

“If you are married under customary law, you will have to register at the marriage registry and then produce the document when transacting."