Question: I bought properties a few years ago and registered them under my son who was a minor. I’d like to dispose of the property and invest, but now that he is an adult, he does not want to facilitate the transfer. How do I prevent my son from disinheriting me?
Dear Reader,
Given that the titles are already registered in your son’s name, the only way for you to prevent him from exercising ownership rights over the property is by attaining a court order, that either cancels the title registered in favour of your son or otherwise getting a court order which transfers the property to yourself or a third party of your choice.
Before pursuing either of the two options, you should place a caution on the property (a notice registered in the lands registry that prohibits dealing with land due to a dispute on the property).
The caution is necessary since if your son sells the property to a third party who buys the property at a fair value without notice of the dispute between you and your son, the buyer will acquire good title and you will lose the property.
The caution thus protects you as the dispute is being settled so that should your son attempt to sell without your knowledge, the buyer will be informed and the sale might not go through unless the caution has been removed.
The above being said, let us asses the available options in court.
Cancellation of the title
Under Kenya’s land laws, minors are incapable of validly holding title to land. If the title in question was transferred to your son while he was still a minor, there are grounds for invalidating the title, but this can only be done by way of a court order.
The drawback of this approach however is that the title might revert to the original owner in which event you would need the original owner’s participation to re-transfer the property to yourself or to another third party of your choosing.
It goes without saying that in that event, you would not be guaranteed the original owner’s cooperation, and you may require a second court order to transfer the property. Alternatively, you can pursue option two.
Transfer the property to yourself or to a third party of your choice
Ordinarily, when an individual enters into a sale agreement and pays the purchase price, the property is transferred to the individual who paid the purchase price.
Where an individual pays the purchase price for land and the land is transferred to someone else, a trust may arise.
Inland laws, a trust arises when the property is registered in the name of one person but is to be used on behalf of or for the benefit of another.
Whereas most trusts need to be formally drawn up and registered, there are situations in law where trusts can be automatically implied because of the prevailing situation.
One such trust is what has been referred to as a resulting trust.
In the case of Charles K. Kandie v Mary Kimoi Sang [2017] eKLR, the court generally found that “a resulting trust will automatically arise in favour of the person who advances the purchase money. Whether or not the property is registered in his name or that of another, is immaterial (see. Snell’s Equity at p.177) (supra)….”
In this event, given that you paid the entire purchase price, you would have grounds to argue that your son was never meant to hold the property absolutely and that he was merely holding the property in Trust for you.
In the circumstances, of your son having unreasonably refused to cooperate in the transfer, disposal or other use of the property, you require the court’s intervention to facilitate the transfer to you or a third party.
There might also be a contractual basis for arguing that the title registered in your son’s name is either held under trust or can be voided.
Under Section 3 (3) of the Contract Act, all contracts dealing with the transfer of land must be in writing.
As such, before buying the property, the seller likely sent you a sale agreement for you to execute.
Ordinarily, a sale agreement will be in the names of the seller and the buyer. The buyer then has the option of nominating some other individual to be registered as the title holder.
In the circumstances, you could argue that you were always the buyer and though you nominated your son as the title holder, you never intended to give up your ownership rights over the property.
In all, Land Law may be complex and court proceedings could end up being unpredictable. Be that as it may, given that your son is the registered title holder, you will have to agree with him on the use of the property or otherwise seek redress in court for the court to determine ownership rights.
The writer is a Senior Legal Counsel at Zamara and can be reached via [email protected]
