Three land-related statutes were passed into law in 2012. These are the Land Act, the Land Registration Act and the National Land Commission Act. These new land laws have repealed seven others that have been functional in the past.
The core objectives of the new Acts are to revise, consolidate and rationalise the registration of titles to land, as well as the laws relating to the use of land in accordance with the Constitution and principles of devolved government.
Further with the setting up of a National Land Commission, land matters can now be dealt with down at County level, which is a huge accomplishment for Kenyans.
In this article, and a subsequent one, we will explore winners and losers as brought out in the new land laws.
Spouses, borrowers, financial institutions and beneficiaries of Trust property emerged as key winners in respective ways.
For spouses, the new laws provide for rights to matrimonial homes and property. Section 91 of the Land Act prohibits the transfer of land held under joint tenancy by only one of the parties. Section 93 has modified the issue of co-ownership and use of property between spouses, while Section 96(2) requires that lenders must give spouses notice of intention to dispose off property. The consent of the spouse is required prior to the charging or transferring of matrimonial property. This means that a spouse will at all times have a say.
For Trust property, consent must be obtained from beneficiaries prior to transfer or charging the property. This will ensure that they are aware and are agreeable to any action to be taken on the land on which they have an interest.
For borrowers, the new laws are alive to consumer protection rights. Section 80(3) introduces a mandatory requirement for lenders to include in the charge the terms and conditions of sale. Section 84 deals with variation of interest. Notice must be provided in writing to borrowers on any reduction or increase of interest rates, and must be in a manner that can be understood by the borrower. Variation is only applicable 30 days after the notice.
Section 85 has amplified the right of a borrower to redeem his property without the lender applying any clogs and fetters. A borrower has right to give not more than a month's notice or pay not more than a month's interest. Section 90 provides for events of default, where notice of default must be given if the default lasts for a month.
Defaulters under the new laws have a longer period to remedy the default. Whereas before they had 90 days notice and 45 days for auctioneer's notice, now they have a month for default, 90 days notice to clear default, 40 days courtesy notice of the lender's intention to sell and 45 days for auctioneer's notice.
Next week we will further look at who gains and who loses what.
Rienye is legal manager at Housing Finance.