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You can lose deposit, house if you default.

By Harold Ayodo

I resolved to buy a house from a Government institution six years ago following its pocket friendly cost. The sale agreement stipulated that I pay a deposit then settle the balance in installments before I am furnished with the legal ownership documents. However, I defaulted for some years after my wife fell sick and I was not in a position to pay the installments over a certain period. Recently, my name was among some that were published in a mainstream newspaper for defaulting and were threatened with repossession should we not settle our dues within a specific time frame. The reality is that I am still spending a lot of money on paying medical bills for my wife and may not settle the dues as instructed. Is it legal for the house I bought to be repossessed? Tito, Nairobi.

You can loose your house if you default.

Legally, a seller can repossess property when a buyer defaults payment as mutually agreed in a binding sale agreement. In such cases, sellers can legally repossess their land or homes as provided in the recently passed Land Act 2012. It would be easier for the seller to reclaim the property when there was a written sale agreement with detailed clauses to guide the transaction. According to Section 39 of the Land Act, sellers can invoke their right to cancel the written agreement over breach of contract by the purchaser. The seller can either resume possession of the property on mutual agreement or obtain a court order before moving in. Before regaining possession, the seller must give a notice informing the purchaser of the nature and extent of the breach.

The seller also has the option of seeking financial compensation for default as stipulated in the sale agreement. However, there are legal requirements that must have been fulfilled before the seller reclaims the property. For instance, the sale agreement must not only have been in writing but signed by both parties and the signatures attested to by a witness who was present during the signing. There are also some clauses in the agreements stipulating that the seller can repossesses the property and not refund the money earlier paid as deposit/down payment – especially if there is a forfeiture clause. Majority of forfeiture clauses in property sale agreements stipulate that the purchaser lose the money paid as deposit if they default in payment.Several prospective investors have lost fortunes over failure to abide by written contracts over various reasons. For instance, most sellers of property require that buyer pays a deposit of at least 10 per cent of the purchase price and the balance settled in installments within 90 days. Traditionally, most courts abide by the written contracts signed by both parties when property transactions turn sour. A precedent was set in a recent case where South African farmer Stephanus Kruger won a Sh800 million land dispute in Uasin Gishu at the High Court, sitting in Eldoret. According to court records, Kalenjin Investment Trust, EMO paid Kruger Sh112 million deposit for a Sh800 million tract of land in the area. EMO, which has 400 shareholders, moved to court seeking to block Kruger from selling to third parties his controversial 5,000 acres of land and properties in it. The buyers told Lady Justice Philomena Mwilu that Kruger breached the sale agreement after sub dividing the land for sale to third parties after pocketing Sh112 million deposit. The intention of EMO was to stop Kruger from sub dividing and selling parcels LR 21792/3, 2179/4, 9127 and 8522 and movable property within. However, Kruger – in his defence – argued that the contract stipulated that EMO were to pay a deposit of Sh252 million, which they failed. Therefore, Kruger placed an advertisement in a local daily on the sale of the 5,000 acres of land located in Uasin Gishu County which prompted the suit. Furthermore, the sale agreement stipulated that Kruger was at liberty to sell the property after issuing notice in cases of a breach. Lady Justice Philomena Mwilu (currently Deputy Chief Justice) concurred with Kruger that EMO was in breach of a requirement to pay in full either the deposit or purchase price. According to Justice Mwilu, dealings of the two parties after the expiry of the date of payment were outside the sale agreement. The court ruled that it could not be involved to re-write the contract between EMO and Kruger. Consequently, Lady Justice Mwilu found EMO guilty of breach of contract by failing to abide by the clause on payment of deposit or sale price. — The writer is an Advocate of the High Court
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Weekly Ujenzitoday News.

Forced to demolish His Mansion.
Joseph bought land in Mlolongo area Machakos County. The owner of the land had fenced the plot and Joseph and the contractor assumed the fence was done on the actual beacons of the land. The truth is that the land owner had move two beacons on one side of the plot and fenced on it to give a false impression that the land was large and hence charge more. Joseph bought the land  and without confirming the beacons started building his mansion on the land. Half way through the construction, when Joseph was preparing to cast the first floor slab, one of his neighbor decided to sell his piece of land, he brought a Land Surveyor to help establish the beacons. It was during this exercise that it was established that half of Joseph’s house was on the neighbors’ plot. Joseph confirmed the same with his Land Surveyor. This forced Joseph to pull down the building. You can imagine the loss of money and time.

Before paying for land, you should get a qualified Land Surveyor to establish the beacons of the land. This will help you know the actual area/size of the land with the exact dimensions on the ground. Never assume that the existing boundary fence is the actual boundary of the plot.Do a proper land survey.

Conned at the Timber Yard.
In most cases where the developers give labor contract, they normally with help of a qualified person source and buy materials. In the construction industry a lot of tricks are used to swindle people money, when buying materials, as Mary learned the hard way. She had reached the roof stage of her house, so she decided to source and buy timber by herself. After visiting many timber yards, she settled for one that she believed had good quality timber, with reasonable price. Mary bought the timber as quantified and delivered to site, she knew what she had bought was enough to complete the timber work of her roof. That was not to be, because the timber covered about 70% of the roof only.

Mary was shocked and doubted the quantity given by her contractor. But comparing with what her friend had used on her roof which was the same size and design as her house, the quantity given to Mary should have completed the house. Could the workers have stolen? It’s not possible the site was well secured night and day. Since the roof had to be done to completion,Mary had to make another trip to the timber yard to buy the remaining feet of timber, but this time she went with the foreman. That is when she realized the mistake she did. The first thing the foreman did was to ask to see the tape measure, which he inspected keenly .He then noticed that the tape measure didn’t have some digits on it as should the case for normal tape measure. There were missing digits on it, he found out that like between 1 foot and 12 feet, there were four digits missing on the tape, meaning although the tape reads 12 feet when measuring timber, the actual length of timber is 8 feet, less by 4 feet, leading to loss of money. Like for Mary It was a big loss, especially considering she had paid for about 4500 feet of timber. In the first purchase, she lost over 1000feet of timber. Mary had been conned.

Go with your own tape measure and insist on using it.
When you are planning to buy large quantity of timber, get 3 people preferable carpenters, to accompany you to the timber yard.
• One person will confirm the measurement read out, from the tape measure.
• The 2nd person will be checking the quality of each timber being measured.
• The 3rd person to help in jotting down the measurements read, at the same checking the tape measure from his end.
If you are alone, you can’t keep up with the speed and tricks used. This is because its required that the timber quality and quantity be checked simultaneously during measurement of the each piece of timber ,then there is also jotting down the readings, so if you are less than 3 people, you may not cope up with the speed and this may lead to either you getting less footage or poor quality timber.

The Nightmare of a Poorly Draining Bathroom Floor.
Bathroom should be fun to use. After a hard day at work, a quick shower or a warm bath tub can be very refreshing. Showering can be a nightmare if the workmanship is poorly done. There is nothing as inconveniencing and depressing as physically draining waste water on the bathroom floor after every use. A good bathroom floor should drain water on its own using the slope made on the floor. Mr.Peter bought expensive tiles and fixed them on the floor of his magnificent house, hoping to enjoy using his bathroom. The slope of bathroom floor was poorly done, with some areas having depression that held water, also waste water was not into draining into the floor trap, instead it was  flowing to the opposite direction of the floor trap (Floor trap drains waste water from bathroom floor). Mr. Peter had to call qualified person to demolish the floor tiles and correct the issue.

The floor trap should be put away from the door so that water drains away from the bathroom door, to avoid wetting the floor near the bathroom.
Get qualified and experienced person to do a proper screed on the floor considering the right slope of the floor? Prove the level is ok by pouring water and checking where it flows to. Do this before tiling the floor. If the floor screed is done well, the tiler won’t use a lot of tile adhesive. The tiler should also take his own level to ascertain whether they are indeed ok. He should ensure there is a smooth floor of waste water into the floor trap.
NB.Proper leveled screed applies to all bathrooms, regardless of the type of floor finish, be it terrazzo, ceramic tiles, cement finish, they all require a proper well leveled floor screed.