Ask a lawyer:
What are the most common mistakes to avoid when drafting a Real Estate Assignment Agreement?
M-Wakili's Response
It is crucial to avoid common mistakes when drafting a Real Estate Assignment Agreement to ensure a smooth and legally sound transaction. Here are some of the most common mistakes to avoid:
1. Lack of Clarity and Specificity
Ambiguous Language: Using vague or ambiguous language can lead to disputes and misunderstandings. Ensure all terms are clearly defined and leave no room for interpretation. For example, instead of stating "the property," specify the exact address and legal description of the property.
Incomplete Information: The agreement should include all essential details, such as the purchase price, closing date, and any contingencies. Omitting crucial information can create complications later on.
Unclear Assignment of Rights and Obligations: Clearly define the rights and obligations of both the assignor (the original buyer) and the assignee (the new buyer). This includes specifying which party is responsible for paying the purchase price, closing costs, and any other expenses.
Sources:
Real Estate Contracts: Elements, Drafting, and Common Mistakes ↗
How to Avoid Common Mistakes in Real Estate Contract Drafting ↗
2. Failure to Address Contingencies
Contingencies: Contingencies are conditions that must be met before the assignment is finalized. These can include financing, inspections, or the sale of another property. Failing to address contingencies properly can lead to delays or even the termination of the agreement.
Unrealistic Timeframes: Set realistic timeframes for fulfilling contingencies. If the timeframes are too short, it may be difficult to meet them, leading to delays or breaches.
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3. Inadequate Due Diligence
Title Search: Before signing the assignment agreement, the assignee should conduct a thorough title search to ensure that the assignor has clear title to the property. This will help to avoid any potential claims or encumbrances on the property.
Property Inspection: The assignee should conduct a property inspection to identify any potential issues with the property. This will help to avoid surprises after the assignment is finalized.
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4. Neglecting Legal Advice
Seek Legal Counsel: It is essential to seek legal advice from a qualified real estate lawyer before signing any assignment agreement. A lawyer can help to ensure that the agreement is drafted properly and protects the interests of all parties involved.
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5. Failure to Comply with Kenyan Law
Land Registration Act: The Land Registration Act, Cap 300, governs the registration of land titles in Kenya. The assignment agreement should comply with the requirements of this Act, including the proper registration of the assignment.
Law of Contract Act: The Law of Contract Act, Cap 23, governs contracts in Kenya. The assignment agreement should comply with the requirements of this Act, including the essential elements of a valid contract, such as offer, acceptance, and consideration.
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6. Lack of Proper Signatures and Witnessing
Signatures: The assignment agreement should be signed by both the assignor and the assignee.
Witnessing: The signatures should be witnessed by a competent person, such as a lawyer or notary public.
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Case Laws
Case Law: Muthaura v. Njuguna & Another (2003) eKLR
Facts: The case involved a dispute over the ownership of a piece of land. The plaintiff claimed that he had purchased the land from the defendant, but the defendant denied the sale.
Outcome: The court held that the plaintiff had failed to prove that he had purchased the land from the defendant. The court also found that the plaintiff had failed to comply with the requirements of the Land Registration Act, Cap 300, in registering the sale.
Relevance: This case highlights the importance of complying with the requirements of the Land Registration Act, Cap 300, in real estate transactions. It also emphasizes the need for proper documentation and evidence to support claims of ownership.
Case Law: Kenya Commercial Bank Ltd v. Kiplagat & Another (2010) eKLR
Facts: The case involved a dispute over a mortgage loan. The plaintiff, a bank, claimed that the defendant had defaulted on the loan and sought to foreclose on the property.
Outcome: The court held that the defendant had defaulted on the loan and ordered the foreclosure of the property. The court also found that the defendant had failed to comply with the terms of the mortgage agreement.
Relevance: This case highlights the importance of complying with the terms of mortgage agreements. It also emphasizes the need for borrowers to understand their obligations and to seek legal advice if they are having difficulty making payments.
TLDR
To avoid common mistakes when drafting a Real Estate Assignment Agreement, ensure clarity and specificity, address contingencies, conduct due diligence, seek legal advice, comply with Kenyan law, and ensure proper signatures and witnessing.
Conclusion
By avoiding these common mistakes, you can help to ensure that your Real Estate Assignment Agreement is legally sound and protects your interests. It is always advisable to seek legal advice from a qualified real estate lawyer before signing any assignment agreement.
Sample Real Estate Assignment Agreement
Real Estate Assignment Agreement
This Real Estate Assignment Agreement ("Agreement") is made and entered into as of [Date], by and between [Assignor Full Name], residing at [Assignor Address] ("Assignor"), and [Assignee Full Name], residing at [Assignee Address] ("Assignee").
WITNESSETH:
WHEREAS, Assignor is the owner of the property located at [Property Address] ("Property"), and is the buyer under a Purchase Agreement dated [Purchase Agreement Date] ("Purchase Agreement") with [Seller Full Name] ("Seller"); and
WHEREAS, Assignee desires to purchase the Property from Assignor, and Assignor desires to assign its rights and obligations under the Purchase Agreement to Assignee.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties agree as follows:
1. Assignment of Rights and Obligations
Assignor hereby assigns to Assignee all of its right, title, and interest in and to the Purchase Agreement, including but not limited to the right to purchase the Property from Seller. Assignor further agrees to cooperate with Assignee in completing the purchase of the Property from Seller.
2. Purchase Price
The purchase price for the Property shall be [Purchase Price] ("Purchase Price"). Assignee shall pay the Purchase Price to Assignor in accordance with the terms of the Purchase Agreement.
3. Closing
The closing of the purchase of the Property shall take place on or before [Closing Date] ("Closing Date"). The closing shall be held at [Closing Location].
4. Closing Costs
Assignee shall be responsible for all closing costs, including but not limited to:
Transfer taxes
Legal fees
Recording fees
Title insurance
5. Representations and Warranties
Assignor represents and warrants to Assignee that:
Assignor has the full right, power, and authority to enter into this Agreement and to assign its rights and obligations under the Purchase Agreement to Assignee.
The Purchase Agreement is in full force and effect and is not subject to any breach or default.
The Property is free and clear of any liens or encumbrances, except as disclosed in the Purchase Agreement.
6. Indemnification
Assignor agrees to indemnify and hold harmless Assignee from and against any and all losses, damages, liabilities, costs, and expenses (including reasonable attorneys' fees) arising out of or relating to:
Any breach or default by Assignor of this Agreement or the Purchase Agreement.
Any misrepresentation or warranty made by Assignor in this Agreement.
Any claim or demand made against Assignee by Seller or any other third party arising out of or relating to the Property.
7. Default
If Assignee fails to perform any of its obligations under this Agreement, Assignor may terminate this Agreement and Assignee shall forfeit all rights to the Property.
8. Entire Agreement
This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous communications, representations, or agreements, whether oral or written.
9. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the Republic of Kenya.
10. Notices
All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered personally, sent by certified mail, return receipt requested, or sent by overnight courier service, addressed as follows:
If to Assignor: [Assignor Full Name] [Assignor Address]
If to Assignee: [Assignee Full Name] [Assignee Address]
11. Severability
If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall remain in full force and effect.
12. Waiver
No waiver of any breach of this Agreement shall be deemed a waiver of any subsequent breach.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
Assignor:
[Assignor Signature]
[Assignor Printed Name]
Assignee:
[Assignee Signature]
[Assignee Printed Name]
Witness:
[Witness Signature]
[Witness Printed Name]
Witness Address:
[Witness Address]
Answered by mwakili.com