In Simple Terms
An encumbrance is a claim or liability on a piece of land by someone other than the owner. It means someone else has a legal interest in the property that can restrict what you do with it, whether that’s selling, building, or transferring.
If you’re buying land, you need to know about encumbrances because buying property with one can mean inheriting someone else’s problem.
Common Types
Mortgage / Charge: The owner took a bank loan using the title deed as collateral. The bank has a charge on the property until the loan is repaid. The land can’t be sold without the bank’s consent. This is the most common type. More on how this works: title deed loans.
Caveat: A legal notice placed on the title by someone claiming interest in the land. Could be a family member disputing ownership, or a buyer who paid a deposit but hasn’t completed the transfer. A caveat blocks all transactions until the claim is resolved.
Court Order: If the land is involved in a legal dispute, a court can restrict any sale or transfer until the case is settled.
Easement: Someone else has the right to use part of your land for a specific purpose, like running a water pipe or access road through it. You still own the land but you can’t block that use.
Unpaid Rates or Rent: Outstanding land rates (freehold) or land rent (leasehold) owed to the county government. These need to be cleared before any transfer goes through.
Why This Matters When Buying
If you buy land with an undisclosed encumbrance you could lose the land entirely if a bank forecloses, be unable to build if there’s a court order, inherit someone’s debt, or end up in a legal dispute. This is why checking for encumbrances is part of every land purchase.
How to Check
Do an official land search at the Ministry of Lands:
- Go to the Lands Registry (Ministry headquarters or a local Lands Office)
- Pay Ksh 500
- Submit a search application with a copy of the title deed
- Get a search certificate listing the registered owner and any encumbrances
Do this before paying any money. Always.
For the full buying process: how to buy land in Kenya.
What If There Is an Encumbrance?
It doesn’t always mean you can’t buy. But you need to be careful:
- Mortgage: The seller clears the loan first, or you arrange for part of your payment to go to the bank directly. Get a lawyer involved.
- Caveat: The seller gets it removed (by resolving the claim or through court) before the sale.
- Unpaid rates: Usually the seller clears these before transfer. Get a rates clearance certificate.
- Court order: Don’t buy land under active litigation. Wait it out.
