Section 54(5) of the Land Registration Act, 2012 (LRA) read together with Section 13(4) of the Sectional Properties Act, 2020 (SPA), required that all long term leases intended to confer ownership and which were registered before the Commencement of the SPA be geo-referenced and registered in line with the SPA on or before 28 th December, 2022 (the moratorium).

While the moratorium lapsed on the 28 th of December 2022, many stakeholders had been locked out due to transitional implementation challenges key among them;

a. Projects which had partially registered log term leases under the repealedRegistration of Titles Act (RTA); and
b. Transactions with previously registered long-term leases where the transacting unit owner faces the daunting and costly task of having to geo-        reference an entire residential or commercial building or complex in order to transaction with their units

Undoubtedly, these challenges were bound to have ripple effect on the timelines for creation, perfection and enforcement of interests with fiscal implications. It is against this background and the need to ensure business continuity that the Ministry of Lands, in consultation with land sector players have come up with transitional measures towards registration of long-term leases.

Through a joint Memorandum issued by the State Department for Lands and Physical Planning, the registrar has been allowed to register long term leases for projects not geo-referenced if they comply with the following requirements manually:

First for new registrations over long term leases developments where some long term leases have been registered although the properties have not been geo-referenced may be registered manually where the registered owner of the property gives an undertaking (in a prescribed form) that they will cause georeferencing of the parcel within six months from the date of the undertaking. The undertaking is further accompanied by an acknowledgement letter from a licensed surveyor (also in prescribed form) that they have indeed received instructions to undertake geo-referencing from the owner of the land.

The registrar may also cause registration of long term lease to fully registered units or long-term leases for dealings (transfer or charge) with respect to an already registered long term lease which has not complied with geo-referencing requirements under SPA. In undertaking registration under the second limb, the registrar submits an application to the Director of Surveys in order to determine the cost of geo-referencing which shall be borne by the unit owner prior to registration of the dealing. Where the unit owner doesn’t pay the geo-referencing costs after valuation and notification, the Registrar may still proceed with registration of the lease and an encumbrance in form of a lien against the lease until such payment is made. No future dealings on the property may be undertaken until the lien has been discharged.

This move by the Ministry and stakeholders involved will unlock and facilitate registration of various transactions that have stalled due to geo-referencing requirements previously sanctioned under the SPA. It is a welcome move to real estate developers, advocates and other land practitioners as will see more units getting registered without having the units geo-referenced in the first instance.

The checks and requirements on issuance of an undertaking by the land owner and the acknowledgement letter by the surveyor will also ensure that there is compliance during this transition period.

Authors
Michael Okumu
Lydia Soi
Samuel Chumba