Introduction
In Kenyan property deals, having a licensed surveyor is more than a formality—it is a crucial protection for both buyers and sellers. These experts bring the necessary skills, experience, and commitment to professional standards, ensuring a smooth and successful property transaction. Pre-contract inquiries are vital for navigating the complexities. These investigations go beyond standard searches, covering the physical condition, location, and the proposed contractual document. For savvy buyers, understanding a property’s physical features is key. This involves a thorough inspection, either personally done or by a qualified agent like a valuer. The inspection assesses the property’s value, reveals any defects, identifies occupants, confirms boundaries, and evaluates fixtures. This article highlights why engaging a licensed surveyor is significant in Kenyan property transactions.
Protecting Purchaser Interests with Pre-Contract Surveys
Before committing to a property contract, pre-contract surveys go beyond just physical aspects, tackling issues that complement standard searches and are vital for protecting the buyer’s interests. In this situation, where the buyer accepts the property “as is,” releasing the seller from revealing hidden defects, it’s crucial for the buyer, guided by their conveyancer, to conduct a thorough survey and inspection before agreeing to the contract.
These surveys cover various critical aspects of a property transaction, evaluating development prospects, planning permissions, and examining neighbouring properties. They also look into access rights, boundary disputes, water supply, drainage systems, and physical defects. Additionally, pre-contract surveys address legal considerations, exploring existing or potential disputes subject to court proceedings regarding the property. They determine occupancy status, whether there are current tenants, or if the property is vacant.
In essence, these surveys play a crucial role in examining the many facets contributing to the overall condition and legal standing of the property. The extent of pre-contract inquiries is tailored to the property and transaction characteristics. When representing the seller, it’s essential not to presume answers to pre-contract inquiries. Thorough consultation with the client ensures accurate and comprehensive responses.
Who is a qualified surveyor in Kenya?
A qualified surveyor in Kenya, especially a member of the Institution of Surveyors of Kenya (ISK), is a professional expert in land surveying. The Survey Act (Chapter 299 of the Laws of Kenya) governs their legal mandate and responsibilities. Surveyors play a crucial role in ensuring accurate measurements, defining land boundaries precisely, and producing reliable survey plans.
Operating within the legal framework of the Survey Act, surveyors are responsible for determining and defining property boundaries accurately. This involves conducting surveys to mark and document the limits of land parcels. They also prepare detailed survey plans that comprehensively document the spatial layout of land, including boundary lines and relevant features. Surveyors are essential in supporting land registration processes by contributing vital data, ensuring that information submitted to land registries is not only accurate but also compliant with legal requirements.
In property transactions, surveyors are integral, providing necessary surveys and plans that facilitate the buying, selling, or transfer of land, ensuring the legality and accuracy of these transactions. They also play a role in dispute resolution, especially in boundary disputes, providing expert testimony and survey evidence to aid in legal resolutions. Surveyors adhere to professional standards and ethical guidelines, ensuring their work meets the required levels of accuracy, integrity, and legal compliance.
Leveraging technological advancements like GPS, total stations, and Geographic Information Systems (GIS), surveyors enhance the precision and efficiency of their surveys. They engage in frequent consultations with clients, legal professionals, and other stakeholders to ensure a clear understanding of survey objectives, methodologies, and expected outcomes.
The Significance of Dealing with Qualified Surveyors in Kenya
According to Section 18(2) of the Land Registration Act, 2012 (LRA), the court is barred from handling actions related to disputes over registered land boundaries unless those boundaries are determined as specified in the section. This highlights the importance of following legal procedures and the vital role of qualified surveyors in resolving boundary disputes.
The LRA entrusts the duty of fixing boundaries to the Land Registrar. If deemed necessary, the Land Registrar notifies owners and occupiers of the intention to ascertain and fix boundaries. This involves allowing all concerned parties to be heard, conducting a survey to define boundaries, filing a plan, and noting the fixed boundaries in the register.
The legal doctrine of exhaustion of alternative dispute resolution mechanisms, as seen in the case of Republic v Firearms Licensing Board & Another Ex parte Boniface Mwaura [2019], underscores the need to follow established procedures before resorting to court intervention. This doctrine, rooted in Article 159 of the Constitution, was affirmed in the Matter of the Mui Coal Basin Local Community.
Although the court has the power to resolve land disputes, as outlined in Article 162(2)(b) and Section 13(2) of the Environment and Land Court Act, Section 18(2) mandates that the court cannot hear boundary disputes unless boundaries have been fixed in accordance with Section 20. This emphasizes the Land Registrar’s primary role in determining boundaries.
Disputes about general boundaries fall within the jurisdiction of the Land Registrar. This approach is considered sound due to the Land Registrar’s technical skills and expertise in handling such matters, further underscoring the importance of involving qualified surveyors.
The court must respect and adhere to the dispute resolution mechanisms provided by statutes, and litigants should exhaust these mechanisms before seeking redress in court, as established in Speaker of the National Assembly v James Njenga Karume [1992] eKLR.
In summary, the engagement of qualified surveyors in Kenyan property transactions is not merely procedural but a strategic necessity for both buyers and sellers. Pre-contract surveys conducted by these professionals provide a crucial layer of protection, uncovering hidden defects and ensuring a comprehensive understanding of a property’s condition. Defined by the Survey Act, qualified surveyors play a pivotal role in accurately delineating property boundaries, contributing to land registration, and facilitating lawful property transactions.
The legal landscape underscores the importance of qualified surveyors in resolving boundary disputes, with the Land Registrar, guided by these experts, taking a central role. The article emphasizes that their involvement is essential not only for adherence to legal frameworks but also for the precision, integrity, and successful resolution of property-related matters in Kenya.
