I attended a property luncheon recently where the guest speaker said there had been instances where ‘spouses’ are hired to sign off consent for property transactions. If true, could this make it possible for a fraudulent transactions of matrimonial property? Natasha, Nairobi
Yes, there were such cases where some people ‘hired’ partners for transaction of matrimonial property nearly a decade ago when the Land Registration Act 2012 came into force.
The Land Registration Act (LRA) is explicit on consent of a spouse before any transaction on matrimonial property.
Section 93 of the LRA provides that subject to the law on matrimonial property, if a spouse obtains land for co-ownership, there is a presumption that the spouses shall hold the property as joint tenants unless they state otherwise.
But some people who wanted to transact on property without knowledge of their spouses opted to ‘hire’ a spouse and appear with them before land registrars pretending to issue consent for the transaction.
For starters, the provision requires written acceptance from a legal husband or a wife before selling or using matrimonial property as security for a loan.
Therefore, to sell off the secret property for profits, the easiest way out is to ‘hire’ a wife/husband to pose as a spouse before the land registry or commercial bank.
The fake spouse can even appear before the land registrar or bank and sign forms towards effecting the transaction.
Illegal transactions flourished especially in land registries in Nairobi as there was no way to confirm whether a spouse is genuine as Kenya has no marriage registry.
If a marriage registry existed, perhaps, it would have been possible to conduct an official search to confirm marital status.
It was worse as the Ministry of Lands had not come up with prescribed forms on spousal consent forcing some commercial banks to come up with their own.
The banks became more cautious before advancing loans to a married person using a title deed as security as they may lose money if it emerges that the legal spouse had not consented.
Before the Ministry of Lands automated land transactions, for effective property transactions from seller to buyer, lawyers are attached the sworn affidavits to the original title deed and consent to transfer.
Others documents included transfer forms – in triplicate – with passport size photographs of both the buyer and seller affixed complete with signatures and attestation by the lawyer.
Copies of national identity cards and Personal Identification Number (PIN) of both buyer and seller attested by the conveyancer as true copies of the original are also presented to registrars.
Ayodo is an Advocate of the High Court of Kenya