A title deed is evidence of a registered interest. It is not the interest itself, and the distinction is the source of a great deal of loss.
The register is the authority, not the paper. What a title deed says is what the register said when the document was issued. What matters today is what the register says today, which is what a land search returns.
Why that distinction costs people money
Because a physical document can be:
- Out of date. A charge registered last year does not appear on a deed issued four years ago.
- Copied. A photograph or photocopy of a genuine deed proves nothing about who is holding it.
- Forged. A convincing forgery of a document is easier to produce than an alteration of the register.
- Genuine but held by somebody with no right to deal. A relative, a former owner, a person who obtained it in a dispute.
The single most common land fraud in Kenya is not a fake register entry. It is a real document, or a copy of one, in the hands of somebody who is not the proprietor, shown to a buyer who verified the paper rather than the register.
What is on it
Broadly: the parcel identifier, the approximate area, the tenure and where leasehold the term and its conditions, the registered proprietor, and a reference to the deed plan or registry map. The exact form varies with the registration regime the parcel falls under, of which Kenya has had several, and which is itself something an advocate establishes early.
What to do with one you are shown
- Note the parcel number and the proprietor's name, and verify them by search. Do not accept the document as verification of itself.
- Check the name against identification of the person selling, and where a company, an estate or an attorney is involved, check the authority to sell.
- Do not accept a copy as sufficient for anything, and be particularly careful where an original is said to be "with the advocate" or "at the bank" throughout the transaction.
- Match the deed plan to the ground with a surveyor. See beacons and survey.
Where a title is charged
Where the parcel secures a loan, the original will typically be held by the lender, and this is normal rather than suspicious. What matters is that the discharge of the charge is built into the transaction mechanism, with the money conditional on it. See encumbrance.
What goes wrong
"I'll show you the title" is treated as verification. It is an invitation to verify, not the verification.
A deposit is paid on sight of the document. Before the search, before the survey, before identity checks.
The deed plan is never compared to the ground. The parcel on the register and the parcel being walked are assumed to be the same, and sometimes they are not.
Multiple sales. Where a seller has dealt with several buyers, the register is the only place that fact can be found, and only by a current search.