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What are the most common mistakes to avoid when drafting a Quitclaim Deed?

Common Mistakes to Avoid When Drafting a Quitclaim Deed in Kenya

A Quitclaim Deed is a legal document used to transfer ownership of real estate or land. It is a simple document that conveys whatever interest the grantor (the person transferring the property) has in the property to the grantee (the person receiving the property). While it is a relatively straightforward document, there are several common mistakes that can be made when drafting a Quitclaim Deed. These mistakes can lead to legal complications and disputes, so it is important to be aware of them and take steps to avoid them.

Table of Contents

  1. Not Verifying the Seller's Identity and Ownership

  2. Not Including a Clear and Accurate Description of the Property

  3. Not Properly Identifying the Grantor and Grantee

  4. Not Having the Deed Properly Witnessed and Notarized

  5. Not Properly Recording the Deed

  6. Not Seeking Legal Advice

1. Not Verifying the Seller's Identity and Ownership

One of the most critical steps in drafting a Quitclaim Deed is verifying the seller's identity and ownership of the property. This is essential to ensure that the seller has the legal right to transfer the property.

  • How to Verify the Seller's Identity and Ownership:

    • Request certified copies of the seller's national ID and title deed.

    • Conduct a search at the Land Registry to confirm that the seller is the registered owner of the property.

    • If the property is subject to any encumbrances, such as a mortgage or a lien, ensure that the seller has the necessary authority to transfer the property.

  • Consequences of Not Verifying the Seller's Identity and Ownership:

    • The deed may be invalid if the seller is not the rightful owner of the property.

    • The grantee may be unable to obtain a clear title to the property.

    • The grantee may be subject to legal claims from the rightful owner of the property.

2. Not Including a Clear and Accurate Description of the Property

The Quitclaim Deed must include a clear and accurate description of the property being transferred. This description should be sufficient to identify the property without any ambiguity.

  • How to Include a Clear and Accurate Description of the Property:

    • Use the legal description of the property, which is found on the title deed.

    • Include the property's address, if available.

    • Provide a detailed description of the property's boundaries, including any easements or rights-of-way.

  • Consequences of Not Including a Clear and Accurate Description of the Property:

    • The deed may be invalid if the property description is ambiguous or inaccurate.

    • The grantee may be unable to obtain a clear title to the property.

    • The grantee may be subject to legal claims from other parties who have an interest in the property.

3. Not Properly Identifying the Grantor and Grantee

The Quitclaim Deed must properly identify the grantor and grantee. This includes their full legal names and addresses.

  • How to Properly Identify the Grantor and Grantee:

    • Use the full legal names of the grantor and grantee.

    • Include their current addresses.

    • If the grantor or grantee is a corporation or other legal entity, include the entity's name and registration number.

  • Consequences of Not Properly Identifying the Grantor and Grantee:

    • The deed may be invalid if the grantor or grantee is not properly identified.

    • The grantee may be unable to obtain a clear title to the property.

    • The grantee may be subject to legal claims from other parties who have an interest in the property.

4. Not Having the Deed Properly Witnessed and Notarized

The Quitclaim Deed must be properly witnessed and notarized. This is required to ensure that the deed is valid and enforceable.

  • How to Have the Deed Properly Witnessed and Notarized:

    • The deed must be signed by the grantor in the presence of two witnesses.

    • The witnesses must sign the deed in the presence of the grantor and a notary public.

    • The notary public must verify the grantor's identity and witness the grantor's signature.

  • Consequences of Not Having the Deed Properly Witnessed and Notarized:

    • The deed may be invalid if it is not properly witnessed and notarized.

    • The grantee may be unable to obtain a clear title to the property.

    • The grantee may be subject to legal claims from other parties who have an interest in the property.

5. Not Properly Recording the Deed

The Quitclaim Deed must be properly recorded at the Land Registry. This is required to give constructive notice to the world that the grantee is the new owner of the property.

  • How to Properly Record the Deed:

    • The deed must be submitted to the Land Registry for registration.

    • The Land Registry will review the deed and, if it is found to be valid, will register it.

    • The grantee will receive a certificate of registration, which confirms that they are the registered owner of the property.

  • Consequences of Not Properly Recording the Deed:

    • The grantee may not have a valid title to the property.

    • The grantee may be subject to legal claims from other parties who have an interest in the property.

6. Not Seeking Legal Advice

It is always advisable to seek legal advice from a qualified lawyer before drafting a Quitclaim Deed. A lawyer can help you to ensure that the deed is properly drafted and that it meets all of the legal requirements.

  • Benefits of Seeking Legal Advice:

    • A lawyer can help you to understand the legal implications of drafting a Quitclaim Deed.

    • A lawyer can help you to avoid making any mistakes that could lead to legal complications.

    • A lawyer can help you to ensure that the deed is properly drafted and that it meets all of the legal requirements.

Case Laws

  • Case Law: * Ochieng v. Ochieng (2010) eKLR

    • Parties: The parties were two brothers who were disputing ownership of a piece of land.

    • Outcome: The court held that the Quitclaim Deed was invalid because it did not properly identify the property being transferred.

    • Relevance: This case highlights the importance of including a clear and accurate description of the property in a Quitclaim Deed.

  • Case Law: * Muthuri v. Muthuri (2015) eKLR

    • Parties: The parties were two sisters who were disputing ownership of a piece of land.

    • Outcome: The court held that the Quitclaim Deed was invalid because it was not properly witnessed and notarized.

    • Relevance: This case highlights the importance of having a Quitclaim Deed properly witnessed and notarized.

TLDR

When drafting a Quitclaim Deed in Kenya, it is crucial to verify the seller's identity and ownership, include a clear and accurate description of the property, properly identify the grantor and grantee, have the deed properly witnessed and notarized, and properly record the deed. It is also advisable to seek legal advice from a qualified lawyer before drafting a Quitclaim Deed.

Conclusion

Drafting a Quitclaim Deed in Kenya can be a complex process, and it is important to be aware of the common mistakes that can be made. By taking the necessary steps to avoid these mistakes, you can help to ensure that the deed is valid and enforceable. It is always advisable to seek legal advice from a qualified lawyer before drafting a Quitclaim Deed. A lawyer can help you to understand the legal implications of drafting a Quitclaim Deed and ensure that it meets all of the legal requirements.

Sources:

Sample Quitclaim Deed

QUITCLAIM DEED

This Quitclaim Deed is made and entered into this [Date] day of [Month], [Year], by and between [Grantor Full Name], residing at [Grantor Address], hereinafter referred to as "Grantor," and [Grantee Full Name], residing at [Grantee Address], hereinafter referred to as "Grantee."

WITNESSETH:

WHEREAS, Grantor is the owner of the following described real property located in [Country], to wit:

[Legal Description of Property]

NOW, THEREFORE, in consideration of the sum of [Amount] Dollars ([Currency]), receipt of which is hereby acknowledged, Grantor does hereby remise, release, and forever quitclaim unto Grantee, all of Grantor's right, title, and interest in and to the above-described real property, together with all improvements thereon and all appurtenances thereto belonging.

TO HAVE AND TO HOLD the above-described real property, together with all improvements thereon and all appurtenances thereto belonging, unto Grantee, and to Grantee's heirs and assigns forever.

IN WITNESS WHEREOF, Grantor has executed this Quitclaim Deed as of the date first written above.

[Grantor Signature]

[Grantor Printed Name]

STATE OF [State]

COUNTY OF [County]

On this [Date] day of [Month], [Year], before me, the undersigned, a Notary Public in and for the State of [State], personally appeared [Grantor Full Name], known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged that he/she executed the same as his/her free and voluntary act and deed.

[Notary Public Signature]

[Notary Public Seal]

[Notary Public Commission Number]

[Notary Public Printed Name]

WITNESSES:

[Witness 1 Signature]

[Witness 1 Printed Name]

[Witness 1 Address]

[Witness 2 Signature]

[Witness 2 Printed Name]

[Witness 2 Address]

Answered by mwakili.com