This article describes the impact of ardhisasa on land held by banks, hospitals and other third parties.
Conveyancing is the legal transfer of a property from one owner to another. The process involves a conveyancing solicitor or licensed conveyancer who acts on behalf of the buyer to ensure their client receives the title deeds to the property and the land it sits on. The scope of this is that it covers various procedures for certain land transaction. Ardhisasa is a national land information management system. The platform which is set by ministry of land to enable Kenyans to access credible, reliable and efficient land-based services
The process of reforms in land sector through National land information system commonly known as Ardhisasa covers wide areas. This ranges from mode of transaction, mode of payment and the period of services. It was anticipated that these changes would touch the law aspect. This will obviously be a process because the changes will greatly help to minimize the hustle of looking for documents at the registry. For instance, unlike other titles with green card (a document that holds the original records of all transactions relating to a piece of land), GLA title is very hard to get due to missing documents.
Initial land statutes
Originally there were various statutes to which you would have titles registered, they include the R. TA, G.L.A, LTA, Sectional Properties, Registration of Documents Act and Land (Group Representative) Act. However, to bring efficiency and transparency Government proposed the land reforms in an attempt of unifying these statutes under one law or act.
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”). It is in this continuity where the Ardhisasa platform will generate new titles under land registration act.
Differences in titles deeds under different laws
Title deeds bear the title of the law that they are issued under, just below the coat of arms. Title deeds issued before 2012 bore the title of the now-repealed Registered Land Act, but titles issued after 2012 bear the titles of both the repealed and the new law.
Rational for digitization.
Land registration has over years been governed by different legal provisions, a situation that made the process susceptible to fraud. In the conversion, the ministry said the ownership, size, and any interests registered against an old title will not be affected. The land registration process will be centralized under one regime in line with the Constitution. “Registry Index Maps (RIMs) will replace deed plans as registration instruments” said Land Cs, Farida Karoney.
Change of parcel numbers
Land Registration Act 2012 needs georeferencing of land parcels to produce cadastral plans and maps to eliminate overlap of the land parcels. Migrating of titles will see the parcel of land given new parcel numbers. For instance, in the Nairobi the area where this digitization has been done, the parcel of land identified as L.R. No. 209/7229 is now Parcel Number 1 in Nairobi/Block1 while L.R. No. 4393/12 in Nairobi/Block2 is now Parcel Number 1 in Nairobi/Block2.
While many Kenyans has raised concerns on the trust and confidence in applying for new titles, the Ardhisasa system is a platform that will restore public confidence. That is why digitization is a priority. “The best way to assure the landowners is to put in place a system that is not only accessible to them but is also kept away from fraudsters” said Farida Karoney when she was asked about the new titles.
Process involves in changing of titles
According to the ministry of land Cs, the process of replacing old titles starts with preparation of cadastral maps and the conversion list indicating new and old numbers for parcels within a registration unit, and their corresponding acreage. Cadastral maps are very detailed, indicating size, ownership and ownership changes, providing a continuous record.
· After the maps are drawn, they will be published with a conversion list.
· After this stage, landowners will have a chance to lodge complaints for consideration of the ministry.
· Old registers will then be closed and all transactions will be under the new register.
· Kenyans would then get a chance to apply for replacement of title documents from the old registers – free of charge.
Conveyancing of properties held by the institution
A key challenge involves the process entailed in conveyancing and conversion of titles held by banks as collateral or in court pending determination of cases. The ministry has however given a guideline by informing the landowners whose titles are held by banks as collateral will have to talk to their banks so the financial institutions can facilitate their application for the title replacement. Some of the titles are held by hospitals and courts and shall only be replaced on the application by a proprietor, who will have to liaise with the third party to facilitate the replacement process.
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What happens to existing title deeds?
Under the old land law, title deeds were issued under any one of the following statutes, which have now been repealed:
The Registered Land Act (RLA);
The Registration of Titles Act (RTA);
The Land Titles Act (LTA); and
The Government Lands Act (GLA)
Title deeds issued under the RLA and RTA continue to be valid notwithstanding the new laws. These are the most common title deeds in Kenya. In due course, the registrar will issue new title deeds in the new prescribed form.
Titles to be examined and registered afresh: with this digitization process, title deeds issued under the GLA and LTA will have to be examined and registered afresh under the new laws. There are no specific timelines prescribed for the examination and fresh registration, save that this has to be done 'as soon as conveniently possible' - as provided in the new laws. This does not mean that GLA and LTA title deeds invalid. However, they will only be recognized under the new laws after their examination and fresh registration.
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The task of enacting new land laws is Kenya in alignment with the land reforms which has seen land sector go digital. This process cannot be easy not least because land has always been an emotive subject in Kenya, eliciting views from persons across the economic divide. Our law makers have spent a lot of time trying to balance the views of Kenyans but even with this, there are many areas to be polished as we continue with this long journey towards true land reforms.
Illiteracy is proving to be difficult as most dealers in land are completely confused on how to use the system. Therefore, here at premier we shall be giving you step by step guidelines in regards to these changes which are crucial in our normal operations but are disregarded by many.