The Process Of Conversion Of Titles

Background

On 31st December 2020, the Lands and Physical Planning Ministry (“Ministry”) announced that all title deeds issued under the Indian Transfer of Property Act, the Registered Land Act (RLA), the Registration of Titles Act (RTA), the Land Titles Act (LTA), and the Government Lands Act (GLA) shall be cancelled and replaced with new ones under the Land Registration Act, 2012 (“Act”).

Through Gazette Notices, the Ministry has published the conversion list in respect to parcels within Nairobi area. The conversion process involves migrating land parcels registered within Nairobi from the Repealed Statutes to the Act. This is in compliance with the Land Registration (Registrations Unit) Order 2017.

Conversion of Titles

With the Act and the Land Registration (Registrations Unit) Order 2017, the Registrar of Lands shall cancel and replace the old titles with the new ones while retaining the ownership, size and the other interests registered against the respective titles.

The conversion entails the Ministry of Lands preparing cadastral maps, together with a conversion list which will show the old land reference number and the new one.

The process involved

The above statutes have since been repealed and the Ministry of Land and Physical Planning has embarked on the process of registration of these titles under the newly enacted Land Registration Act, 2012. In order to effect the provisions of the Land Registration Act 2012, all titles issued under the repealed laws shall be cancelled and replaced with titles under the Land Registration Act, 2012.

Essentially, the process of conversion begins with the preparation of cadastral maps which serve as a unified survey document together with a conversion list showing the old parcel numbers of land within a registration unit and their corresponding sizes.

Upon receipt of the cadastral maps and the conversion list from the registrar, the Cabinet Secretary in charge of the ministry of Land and Physical Planning shall in line with regulation 4 (4) of the Land Registration (Registration Units) Order, 2017, notify the Public through the Kenya Gazette and two daily newspapers of nationwide circulation of the list of old parcel numbers and new parcel numbers after conversion. The Gazette notice shall specify the date after which the land registry shall be open to the public for transactions or dealings within the registration unit.

Any complaints relating to information in the conversion list or cadastral maps shall file be filed within ninety (90) days from the date of publication of the notice. The complaints shall be made, in writing in Form LRA 96 set out in the Second Schedule to the Land Registration (Registration Units) Order, 2017 or Form LRA 67 set out in the Sixth Schedule to the Land Registration (General) Regulations, 2017 for the registration of a caution pending the clarification or resolution of any complaint. The complaints shall thereafter be resolved within ninety (90) after receipt.

At the commencement date, all registers maintained in any other registry previously dealing with the parcels within the registration unit shall be closed for any subsequent dealings and all transactions carried out in the new register.

The registrar will then issue a notice inviting registered owners to make an application for replacement of title documents from the closed registers. The application shall be accompanied by the original title and the owner’s identification documents. The registrar will then replace the title deeds with new ones and retain the old title documents for records and safe custody.

However, it is important to note that this conversion does not interfere with the ownership, size and other interests registered against the respective title. When it comes to titles in the possession of third parties such as banks, hospitals and courts, the process of conversion shall commence on application by the proprietor.

Ardhisasa | The Process of Enumeration

In the Ardhisasa portal, "enumeration" refers to the process of digitally recording and adding land parcel details onto the system, essentially creating a comprehensive record of a property's ownership and characteristics, including its boundaries, size, and legal status, allowing for easy access and management of land information within the platform. 

Key steps involved in the enumeration process on Ardhisasa:
 

Login to Ardhisasa:
Access the portal using your registered account credentials.
 

Navigate to the "Enumeration" section:
Once logged in, locate the option to begin the enumeration process, usually within your "My Properties" section.
 

Enter land parcel details:
Input information about the property, such as plot number, block number, location, area, and owner details.
 

Boundary demarcation:
Use digital mapping tools to accurately define the property boundaries on the platform, often by utilizing GPS coordinates.
 

Document upload:
Attach relevant supporting documents like title deeds, survey plans, and ownership certificates to verify the land information.
 

Data verification:
Review and confirm the entered data for accuracy before submitting the enumeration request.
 

Approval process:
The submitted information will undergo review and approval by relevant authorities within the land registry.
 

Important points to remember about enumeration on Ardhisasa:
Professional expertise:
For complex land parcels, it may be advisable to involve a licensed surveyor to ensure accurate boundary delineation.

How to Register of Caution Application on the Ardhisasa Platform

1. A caution is a notice in the form of a register to the effect that no action of a specified nature in relation to the land in respect of which the notice has been entered may be taken without first informing the person who gave the notice. This application is initiated by an advocate on behalf of the applicant. In this article we will guide you on step by step on registration of caution application.

2. Log in enter your Ardhisasa ID or national ID number and password. Click on Continue. A one-time password (OTP) will be sent to the phone number associated with your Ardhisasa account. Enter the OTP in the provided box and click on "Login." You will be redirected to the dashboard.

3. On the dashboard, you will find various services listed under different departments in the Ministry of Lands and Physical Planning. By default, you are logged in with your private account.

To initiate the caution application process, switch to your advocate account. Click on the profile icon, and a dropdown menu will appear. Select the professional account that has been approved for you as an advocate.

4. Navigate to the Land Registrationsection and click on View More. Under the land registration section, you will find several services. Locate the Caution option and click on it. This refers to the registration of a caution. You will be directed to the applications page, where various tabs are provided.

5. On the applications page, you will see five tabs: Pending, Ongoing, Completed, Rejected, and Cancelled. Each tab represents the different stages of your caution application. The Pending tab lists the applications you have initiated but have not completed, requiring action from you or the involved parties. The Ongoing tab displays completed applications awaiting processing by ministry officials. The Approved tab shows applications that have been validated by ministry officials. The Rejected tab lists applications that were rejected, with reasons communicated to the applicant. The Cancelled tab is for applications that have been cancelled by parties involved.

6. Click on the New Application button. This will navigate you to a page with frequently asked questions (FAQs) specific to the caution application. Explore the FAQs to gain a better understanding of the application requirements and process. Once satisfied, click on Next to proceed.

7. In the proprietorship Details section, enter the parcel number in the format registry/block/parcel number. Fill in the proprietor's details, including identification type (ID or passport number), name, contact number, and identification number. Click on add to automatically populate and display the entered details on the right side. Use the Remove button to correct any entered details if needed. Once the details are correct, click on Next.

8. In the caution details section, select the extent or scope of the caution. It can be either Subject to the Interest of the caution or Absolute. The Subject to the Interest of thecaution to prevent another person from compromising the sale interest, while the Absolute forbids all dealings with the specified parcel. Enter the interest claimed, such as a purchaser's interest, and click on Add. The interest claimed will be displayed on the right.


9. Enter the Ardhisasa ID of the cautioner and search for it. Select the category of person executing as the cautioner (either the cautioner themselves or an attorney). If choosing the attorney option, enter the power of attorney entry number. Save the details and proceed.

10. Enter any additional details relevant to the caution application. If applicable, provide the details of the law firm you are acting under. You can either tie the application to a registered law firm on the Ardhisasa platform or manually enter the law firm details.

11. Upload supporting documents for the caution application, such as a sale agreement. Ensure the documents are in PDF, PNG, or JPEG format. Enter the document name and choose the file to upload from your device. Review the submitted documents and click Next to proceed.

12. Carefully review all the details provided in the confirmation step. If everything is accurate, click Submit to proceed with the application. You can go back to make any necessary edits if required. Upon submission, a confirmation message will appear, and both the cautioner and advocate will receive notifications via SMS and email.

13. Once submitted, the cautioner will receive a notification to verify the application and append their signature. The advocate will also need to accept or reject the representation request during this stage.

Both the advocate and the cautioner will receive a confirmation message that the application has been successfully submitted. If the caution application is approved, an entry will be made on the register, indicating the relevant details. All parties involved will be notified about the placement of the caution on the specified parcel of land.

The Law on Transferring land Inter vivos in Kenya

Introduction

Inter vivos is a Latin term that refers to when one transfers a gift to another person during their lifetime. For this type of a gift to be valid, it must be between two living persons, be capable of delivery, donative intent and acceptance have to be proved.

A gift can be defined as the transfer of an existing movable or immovable property made voluntarily and without consideration, by one person (the donor) to another (the donee) and accepted by or on behalf of the donee.

Such acceptance must be made during the lifetime of the donor that is while they are still capable of giving. If the donee passes on before acceptance, the gift becomes void.

What does the law require with respect to a gift inter vivos?

In her decision, Nyamweya J. in Re Estate of The Late Gedion Manthi Nzioka (Deceased) [2015] eKLR stated that:

“In law, gifts are of two types, there are the gifts made between living persons (gifts inter vivos), and gifts made in contemplation of death (gifts mortis causa). Section 31 of the Law of Succession Act provides as follows with respect to gifts made in contemplation of death:

… for gifts inter vivos, the requirements of law are that the said gift may be granted by deed, an instrument in writing or by delivery, by way of a declaration of trust by the donor, or by way of resulting trusts or the presumption of Gifts of land must be by way of registered transfer, or if the land is not registered it must be in writing or by a declaration of trust in writing. Gifts inter vivos must be complete for the same to be valid.”

Is Stamp Duty payable on gifts inter vivos?

Clause 52 of the Stamp Duty Act Cap 480 states that any conveyance or transfer operating as a voluntary disposition inter vivos shall be chargeable stamp duty as if it were a conveyance or transfer on sale.

However, Stamp Duty is not payable if:

a) the conveyance or transfer is in favor of any body of persons incorporated by special Act and that body is by its Act precluded from dividing any profit amongst its members and the property conveyed is to be held for the purposes of an open space or for the purposes of its preservation for the benefit of the Republic of Kenya; or

b) any body of persons established for charitable purposes only or the trustees of a trust so established.

Understanding Corporations under the Sectional Property Act, 2020

The transition from a Management Company to a Corporation.

The management company undertaking the above conversion shall transfer all assets and liabilities to the corporation as soon as the conversion process is complete and in any case within one year from the date of registration of the corporation. 

These transfers will be done based on the laws governing the ownership of those assets and liabilities. The management company will then be wound up as per the Companies Act and Regulations.

A corporation is established on the registration of the sectional plan.

A management corporation is therefore a legal entity that manages common areas and units in a sectional property development. The corporation is made up of the owners of the units in the development. 

How is a management corporation formed?

• A surveyor prepares a sectional plan for the development 
• The sectional plan is registered with the Registrar of Titles 
• The Registrar forms a corporation made up of the unit owners 

What does the corporation do? 

• Maintains and insures common areas
• Enforces the terms and conditions of the development
• Manages the administrative fund
• Handles estate disputes
• Resolves disputes through an internal committee
• Evicts tenants
• Imposes charges on units for unpaid service fees

How is the corporation run? 

• A board of management runs the corporation
• Members vote in proportion to the units they own
• The board convenes annual meetings
• The corporation has a common seal and perpetual succession

How is the corporation regulated? 

• The corporation is regulated by the Sectional Properties Act and the Regulations