The Law and Procedure for Obtaining Change of User of Property in Kenya
Introduction
The land law of Kenya allows change of user of property from one category to another. The Government as the custodian of all property (see the principle of Eminent Domain) is seized of right and power to restrict the use of property to which it has available to residents. Often, issuance of Government Leases will be subject to certain restrictions. To use such property in a manner inconsistent with the terms of the lease would automatically breach the contract, and the Government would be entitled to repossess the property without compensation on the ground of breach of lease terms (contract).
For this reason, a developer must apply for and obtain change of user where the intended development is not envisaged within the user contemplated in the title document.
Procedure
The procedure for procuring a change of user is prescribed by law. The relevant Government Office for purposes of processing a change of user is the Local Authority Planning & Architecture Department. Every local authority has such a department.
In summary, the following steps are followed:
- Obtain PPA 1 Form (in triplicate);
- This is submitted to and signed by a registered planner;
- The Registered Planner prepares a planning brief and signs the same;
- Ownership/Title document are appended to the application documents;
- A comprehensive location plan is also attached;
- Copy of Local Authority Payment Receipt for purposes of change of user;
- Copy of Local Authority rate payment receipt;
- The application is addressed to the Town Clerk;
- The Town Clerk issues an approval to the application for change of user;
- An announcement on the proposed change of user is advertised both in the daily newspapers and on site of the property;
- An application is further made to the Commissioner of Lands for change of user;
- The Commissioner of Lands issues an approval/consent to effect change of user, subject to Banker’s Cheque payments towards Surrender (Conveyancing and registration) and Grant of New Title (Conveyancing, registration an stamp duty);
- The Consent from Commissioner of Lands is then forwarded together with all documents to Survey of Kenya to obtain deed plan;
- Surrender the title.
It must be noted that a change of user may be effected only by the owner of the property or a lessee under a duly executed lease. As such, the applications must be signed by the owner or a legitimate lessee holding a valid lease. Lawyers will often engage the services of a registered planner for purposes of obtaining approval for the change of user at City Council.
Change of user is often necessary when a developer is desirous of converting a property limited for residential use to commercial purposes (such as Commercial Property Development) or change the use of property restricted for school projects to residential housing.
The process takes six to eight months due to the verification and approval processes between the relevant local authority, the Commission of Lands Office and the Kenya Surveys.
Costs
Disbursements
The disbursements towards obtaining a change of user include:
- Payment fee to Local Authority for Change of User;
- Advertising Notice of the National Newspaper (The Standard or Daily Nation);
- Surrender Fees to the Commissioner of Lands; and
- New Titles Charges.
These charges vary, depend on the value of the land, and may best be advised by the relevant authorities as the application process progresses.
Professional Fees
The fees towards the professional services range from Kshs. 170,000 and above depending on the value of the land and complexity of the matter.
