UGANDA, Kampala | Real Muloodi News | Prominent Kenyan lawyer, conveyancing specialist and founder of Wamaitha Gichamba and Co. Advocates (WGA), Dorcas Wamaitha Francis was recently interviewed about her work and what inspired her to join that career line. She has advised domestic and foreign clients on various legal matters, including commercial, tax, and real estate law.
Here’s what she had to say – with some advice for off-plan property purchasers in East Africa.
Advocate Dorcas Wamaitha Francis: Life Story
Growing up, just like any other child, Dorcas Wamaitha Francis was undecided about what she wanted to do. She had dreams of becoming an aeronautical engineer, or a doctor.
When she completed secondary school, still not sure about a career choice, she enrolled in the Certified Public Accountants (CPA) course.
“I was a top performer in the introduction to law class at Strathmore University. My course instructor asked me if I’d ever considered law as a career. It got me thinking and I did a bit of research on what it takes to become a lawyer. That’s how I ended up in a law class and, as they say, the rest is history,” Wamaitha narrates.
According to Wamaitha, land is a highly emotional and disputed topic. Most people who contacted her needed help with real estate transactions. Some may blame failed purchases on trusting conveyancers with their title papers, which were later misplaced, or on a poorly drafted sale agreement (often acquired from the internet) that provided them with little or no protection over their property.
According to the lawyer, most land purchasers are unaware of the land transfer process and frequently take the less expensive path to complete the transaction. This, of course, has its own set of dangers and may wind up being a costly and agonizing process for the buyer.
What is Purchasing Property Off-plan?
Purchasing property off-plan entails investing in a home that has not yet been built or is in the early stages of construction. This can be a fantastic method to invest in a property, especially if you can’t afford to purchase or build a house right now.
Many off-plan property buyers lose property to developers and lawyers, so Wamaitha advises;
1. Engage an Independent Lawyer
Off-plan purchasers should have a separate lawyer from the property developer’s lawyer. This ensures that someone is putting their interests first. A lawyer can also advise if any legal action needs to be taken against the developer.
2. Avoid Shortcuts
Many property transactions go bad when buyers try to take shortcuts in the process, causing them to trust the wrong people.
“In land deals, every party is looking out for their interests hence the Latin phrase “Caveat emptor” meaning “Let the buyer beware”. A developer’s lawyer is obviously keen on safeguarding the interests of the developer. When the purchaser relies on the developer or their lawyer to complete the deal on their behalf, the purchaser’s interest will most likely be subordinated to the developer’s interests,” Wamaitha explains.
“Having said that, lawyers are required to avoid situations of conflict of interest, especially when it comes to representing two (2) parties in a land transaction. A lawyer who is confronted by such a scenario should disclose whether he or she is also acting for the other party. The purchaser in such a case would then have a choice to go ahead and engage the said lawyer or instruct an independent lawyer altogether as outlined above,” notes Wamaitha.
Duties and Responsibilities of a Real Estate Lawyer
According to Wamaitha, most individuals, particularly land purchasers, overlook the value of a lawyer and the role they play in a land transaction. There is a widespread misconception that attorneys are expensive and that brokers may readily replace their functions.
The Latin expression ‘caveat emptor,’ which loosely translates to ‘let the buyer beware,’ in land law means a buyer in a land transaction does all due diligence to verify the property they are acquiring has a ‘clean’ title. As a result, a real estate lawyer plays an essential role in completing due diligence on behalf of the purchaser and ensuring the purchaser’s rights are protected.
The lawyer’s responsibilities differ based on the party being represented. When acting for the purchaser, his responsibilities include:
- conducting due diligence on the property (e.g., a physical inspection, historical and registry searches).
- preparing and negotiating the agreement for sale (the “AFS”)
- paying stamp duty,
- And lodging the transfer documents to ensure the title is issued in the purchaser’s name.
If the lawyer is working for the seller, their responsibilities include:
- Reviewing and negotiating the AFS.
- Paying capital gains tax (if applicable).
- Ensuring the transfer paperwork is forwarded to the purchaser’s advocate to complete the transaction.
The seller’s lawyer also works with the purchaser’s lawyer to ensure that the purchase price is paid following the conditions of the AFS.
The Difference Between a Conveyancer and a Real Estate Lawyer
A conveyancer is a person whose duty is to oversee the legal process of transferring land or property from one owner to another. Conversely, a real estate lawyer is a licensed legal practitioner who supervises a land transfer transaction. The primary distinction between a conveyancer and a real estate lawyer is thus one of the professional credentials.
Professional behaviour regulations govern a lawyer, and any misconduct can be reported to the relevant venues, including the [Advocates] Disciplinary Tribunal (the “Tribunal”). Anybody can submit a complaint of professional misconduct against an advocate, including shameful or dishonourable behaviour incompatible with the standing of an advocate, to the Tribunal.
“These forums are not necessarily available for conveyancers and in the unfortunate event of a deal going south, a client is left frustrated with the option of suing the conveyancer. Guess who such a client runs to? The same lawyer they were avoiding! The point is that a party to a land transaction, especially the purchaser, should avoid shortcuts and engage a real estate lawyer from the get-go. This ensures the sanctity of the land deal,” Wamaitha explains further.
According to Wamaitha, working with a conveyancer exposes the customer to the danger of losing money, the property, or property title, typically caused by a lack of sufficient documentation sealing the contract.
The valid question is, how can a person tell if they are working with a legitimate lawyer?
Wamaitha advises that when hiring a lawyer, the first step is to look up their practice status on this government website. This step eliminates the potential of working with unqualified individuals, sometimes known as quacks.
She further adds that professional conduct regulations bind lawyers, and they must follow these rules while interacting with their clients. A lawyer whose practice is dormant, suspended, or struck out is ineligible to operate on behalf of a client.
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