How squatters can legally take ownership of your property without your knowledge
Investing in real estate is one of the biggest opportunities sought by many, be it in buying land for settling or speculation; or buying ready-made houses for living or renting out as well.
Real estate is often considered a good investment for several reasons including the potential for the property’s value to increase over the long term, regular income through rental payments, can be used as leverage to obtain loans and mortgages and the investment being tangible is cause for the owner to feel secure and in control because he can see, touch and utilize it.
So you are a Kenyan, or a foreigner, who invested in real estate in Kenya, but due to the nature of your work or simply preference, you decide to live elsewhere and you either leave your land unattended in the secure knowledge you have its title deed and despite not hiring a caretaker, it is in a secure area.
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As you go about your life, year in year out, it suddenly downs on you that you haven’t been to see or occupy your property in 20 years. And when you arrive, you find that other people occupied your land without asking for your permission. You get angry, threaten to call the police and file law suits in every court available to you and even threaten to teach the squatters a lesson.
But then, at the end of the day, you find that there is nothing you can do about the squatters who have been living on your property for the last eight years before you arrived.
This is what Adverse Possession is all about. It is a doctrine law provided for in Kenya in which a person obtains the rights to own land by reason of actual, open and continued occupation for a number of years even though it belongs to someone else. In Kenya, the prescribed period is 12 years. Sections 7, 13 and 38 of the Limitation of Actions Act address this doctrine law.
Section 7 provides that: “An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”
In such an instance, according to Section 38, a squatter can go to the High Court and apply to be registered as the owner of the land or lease in place of the original owner of the land.
It is therefore advisable that if you have land, and have been waiting to grow financial muscle to develop it, do not wait for 12 years to lapse before someone else eyes your property. You can fence around it to keep squatters out, hire a caretaker to live on it and develop it for agricultural purposes or put up temporary structures on it to show you are continuously occupying the land.