What property owners must know about law on payment of rates

By Collins K’Owuor

In this world nothing is sure but death and taxes, said Benjamin Franklin. These words still ring true today. Rates, a type of property tax, are an obligation for property owners particularly in urban centres.

The media have been awash with warnings from local authorities that property owners risk losing their investment if they don’t pay rates.

The ferocity and vigour of the advertisements has never been seen before. Are they publicity stunts? Are they budgetary troubleshooters? Are they helping property owners before devolution comes to reality?

Let’s evaluate the facts: Rates are a type of tax levied by local authorities to generate revenue for providing services. It is usually operationalised under the Rating Act.

The Act provides that, “Rates shall be levied by the rating authority to meet all liabilities falling to be discharged out of the general rate fund, the county fund or the township rate fund as the case may be”.

Rates are also a fiscal tool for encouraging investment in property by using various models or forms. In Kenya, local authorities use Unimproved Site Value (USV) model whereby a percentage of market value of undeveloped site (land) is struck as rates.

The rate, according to current law, should not exceed four per cent of the USV unless permitted by the Minister. The use of USV model makes those who have not developed their land to feel the pinch and either borrow or transfer money from somewhere to pay the rates.

Owners of developed properties receive rental income from which they can pay rates easily.

Properties under professional property management hardly fall victims of these nightmarish demands for payment of arrears. This is because rates are one of the annual property outgoings considered in property budgets where professionals manage the property.

Rates are usually included in service charges.

Ordinarily, rates fall due at particular months of the year, which has been March for most local authorities. Prompt payment saves the property owner penalties of about two per cent per month.

The penalties can pose a debilitating management risk because they are not subject to in duplum rule (which protects borrowers from wanton exploitation by lenders through unrestrained accumulation of interests on outstanding debts).

The Rating Act permits local authorities to recover the outstanding rates by either charging the property or serving tenants of the property with notice to pay rent to the local authority until the arrears and penalties are fully settled.

Recent media reports indicted City Council of Nairobi took over management of some buildings. In the case of charge over the property, the local authorities can seek for decree from the High Court to sell the property and recover the arrears plus penalties if the owner fails to pay. These options may be administratively decided based on magnitude of the arrears.

Revenue generated by the local authorities from land rates should be used in providing tangible services and accounted for transparently.

We have seen most estates and urban areas without streetlights thereby providing fertile grounds for criminals to waylay property owners and users alike.

Garbage piles by the roadsides and riverbanks despite the property owners paying rates to the councils. Ratepayers have a right to adequate services by local authorities and local authorities have an obligation to utilise rates to provide these services.

The current legal framework has not been dynamic, flexible and efficient.

Disputes over new valuation rolls take too long to resolve due to understaffing and long drawn litigation. Records about rate payments are poorly kept and scarcely updated.

What is the way forward? The Constitution has provided a skeleton on which we need to add flesh to provide enabling environment for robust property investment and sustainable use of properties.

The relevant professionals and experts in this area must not sleep as new governance structures are put in place and new legislative framework formulated to enable productive use of land for prosperity and posterity.

The writer is the Chairman of Institution of Surveyors of Kenya (ISK)