Consents required in land transactions

 
a) Commissioner of Land’s Consent

· This consent is usually sought when one seeks to transfer, lease, sub-lease or subdivide property owned under leasehold tenure. This consent is to ensure that the Commissioner of Lands has proper control and management as well as surveillance of land use in the Country.

· The Commissioner may refuse to grant consent. On the other hand, a party may fail to comply with the requirements for grant of the consent. The effect of this is that the transaction becomes void.

b) Land Control Board Consent

· This consent is required for all Agricultural Land as defined in Section 2 of the Land Control Act. Therefore, all transactions relating to agricultural land have to be approved by the Land Control Board (LCB) that sits where the agricultural land is situated within 6 months of making the sale agreement between the parties.

· The transactions which require an LCB consent are:

1. Sale, transfer, lease, mortgage, exchange, partition and other disposal or dealing with any agricultural land;

2. Division of any such agricultural land into two or more parcels to be held under separate titles other than the division of an area less than 20 acres into plots in an area to which the Development and Use of Land (Planning) Regulations, 1961 (L.N. 516/1961) for the time being apply;

3. The issue, sale, transfer, mortgage or any other disposal of or dealing with any share in a private company or co-operative society which for the time being owns agricultural land situated within a land control area;

4. A declaration of trust of agricultural land situate within a control area dealing in that land.

· Any transaction which requires to have the LCB consent but proceeds without it is null and void.

· There are transactions which are exempt from the LCB consent and they are:

1. Transmissions under a will or intestacy of a deceased person unless the same would result in the division of the land into two or more parcels to be held under separate titles;

2. A transaction to which the Government or the Settlement Fund Trustees (in respect of trust land) of a county council is a party;

3. A transaction whose exemption is granted by the President under a Gazette Notice.

· It is important to note that the parties to the agreement may be required to attend a hearing before the LCB with a decision to grant or refuse being communicated later thereon.

c) Rates Clearance Certificate

· The essence of rates is to raise revenue for the County Governments.

· It is obtained to show that the owner of the land has no outstanding land rates owed to the County Government.

· The certificate issued is normally valid for a period of 30 days.

d) Rent Clearance Certificate

· This certificate is issued by the Ministry of Lands. Land rent is payable by a person who is registered as proprietor lessee from the Government of Kenya.

· It is used to show that the registered proprietor of the leasehold interest has cleared the annual land rent payable to the Government of Kenya.

e) Head lessor’s consent/lessor’s consent:

· This is the consent required during sub-leasing of a lease/charging/transferring.

· It shows that the owner of the Head Lessor/Management Company has consented to the creation of the instrument –be it a lease, charge or transfer.

f) Spousal consent

· Spousal consent is crucial in the sale, charging or leasing of matrimonial property. Without a valid spousal consent, the registered transaction is deemed to be invalid.

· A spousal consent is usually in the form of a statement or an affidavit by the consenting spouse.