Questions You Should Ask Before Signing an Off-Plan Sale Agreement?

Buying an apartment before construction is complete can offer access to a new development, a staged payment plan and, in some cases, a lower initial price than a comparable completed property. However, before signing an agreement, it is important to understand exactly what you are buying and what happens if the project does not proceed as planned. Questions You Should Ask Before Signing an Off-Plan Agreement? This is one of the most important questions to consider before committing a significant amount of money to a property that may not yet exist.

In Kenya, off-plan purchases require careful consideration of the developer, land ownership, project approvals, payment arrangements, construction timeline and the legal documents governing the sale. A polished show apartment, attractive brochure or convincing payment plan cannot replace proper due diligence.

This guide explains the key questions to ask before signing an off-plan sale agreement in Kenya, why each question matters and what you should look for in the answers. It is designed to help buyers make informed decisions rather than assume every development is safe or every off-plan purchase is risky.

1. Is the Developer Legally Entitled to Sell the Property?

Before discussing finishes, views or payment plans, establish who is selling the apartment and whether they have the legal authority to do so.

The company marketing a development may not be the registered owner of the land. It could be a project company, a joint venture partner or an entity operating under an agreement with the landowner. That arrangement is not automatically improper, but it needs to be clearly documented and independently verified.

Ask the developer:

• Who legally owns the land on which the development is being built?
• Is the seller the registered owner, or is it acting under another legal arrangement?
• If another party owns the land, what gives the seller authority to develop and sell the units?
• Is the land subject to a charge, caveat, restriction, lease condition or other encumbrance?
• What legal interest will I receive when the transaction is completed?

What should you check?

Ask your independent property advocate to conduct an official land search and examine the relevant title documents. Where the developer is not the landowner, your advocate should review the documents establishing the developer’s rights and authority to sell.

A land search is important, but it is not the whole due-diligence process. The search should be considered alongside the title, the identity and authority of the seller, the development structure and any registered interests affecting the property.

Do not rely solely on a title document or search supplied by the sales team without independent verification.

2. Does the Project Have the Necessary Approvals?

A development may look convincing in its marketing materials while important approvals remain outstanding. Before signing, find out which approvals have been obtained and whether any remain pending.

Ask:

• Has the project received the necessary county development and building approvals?
• Are the relevant environmental approvals in place, where required?
• Has the project met the applicable National Construction Authority requirements?
• Are there any outstanding approvals that could delay construction?
• Can I have copies of the relevant approval documents?

Why does this matter?

Missing, incomplete or disputed approvals can affect construction progress and create uncertainty for buyers. However, the approvals required depend on the particular project, its location, stage of development and applicable regulations.

Your advocate and, where appropriate, an independent construction professional should verify the documents rather than relying on verbal assurances.

A developer saying that approvals are “in process” is not the same as confirming that they have been granted. If an approval is still pending, ask what it is, why it is outstanding and how the agreement deals with the possibility that it is delayed or refused.

3. What Exactly Am I Buying?

An off-plan apartment is often marketed through architectural drawings, floor plans, computer-generated images and a show unit. These materials can help you understand the proposed development, but you need to know which details form part of your actual contract.

Ask:

• What is the exact apartment number, block and floor?
• What is the stated unit area, and how is it measured?
• Is the quoted area based on internal space, a gross area or another measurement?
• Which rooms, balconies, utility areas and other spaces are included?
• Is a parking space included in the price?
• Is the parking space separately owned, allocated for exclusive use or shared?
• Is a storage unit included?
• What fixtures, fittings and finishes must the developer provide?
• Which plans and specifications are incorporated into the agreement?

Do not assume that everything shown in the brochure is guaranteed.

For example, a brochure may show a furnished apartment with fitted wardrobes, kitchen appliances, decorative lighting and premium finishes. Unless the relevant items are included in the contractual specifications, you may not be entitled to receive all of them.

Ask for the final or contractually applicable floor plan, specifications and schedule of finishes to be attached to, or clearly incorporated into, the agreement.

If the unit size is important to you, ask how measurements will be verified and what happens if the final area differs from the stated size. The agreement should explain whether any variation is permitted and whether it affects the purchase price.

4. When Will Construction Be Completed?

One of the most important questions to ask before buying off-plan is when the developer is contractually required to complete the project.

Marketing materials may advertise an anticipated completion month or year. However, a marketing estimate is not necessarily the same as a binding contractual deadline.

Ask:

• What is the contractual completion date?
• Does the date refer to construction completion, practical completion, handover or another milestone?
• Is there a grace period for delays?
• Under what circumstances can the developer extend the deadline?
• Must the developer notify buyers of a delay?
• What happens if the project remains incomplete after the permitted extension?
• Can I terminate the agreement if the delay exceeds a specified period?

What should you look for in the agreement?

The agreement should distinguish between the expected construction period and the contractual obligations of the developer. It should explain the conditions under which the completion date can change and the consequences of a delay.

Be particularly careful if the developer can extend the completion date repeatedly without a clear limit or meaningful consequences.

Construction can be delayed by financing difficulties, contractor problems, shortages of materials, approval issues and other events. These possibilities do not automatically excuse every delay. The legal effect depends on the wording of the agreement and the circumstances involved.

Do not assume that you can automatically receive compensation or cancel the purchase if construction is late. Your contractual rights should be reviewed by your advocate before you sign.

5. What Happens If the Developer Fails to Complete the Project?

It is easy to focus on the possibility of receiving your apartment on time. It is just as important to understand what happens if the developer cannot complete the project.

Ask:

• What happens if the developer becomes insolvent or stops construction?
• What happens if the project is abandoned?
• What happens if the developer cannot obtain an essential approval?
• Under what circumstances can I terminate the agreement?
• Am I entitled to a refund if the developer fails to meet its obligations?
• How long does the developer have to refund my money?
• Does the agreement provide for interest on a refund?
• What happens if the developer disputes my right to terminate?

Why is this important?

The practical value of a refund clause depends on its wording and the developer’s ability to pay. A contractual promise to refund money does not, by itself, guarantee that the funds will be available if the developer experiences serious financial problems.

Ask your advocate to examine the termination provisions, refund deadlines, dispute procedures and any security supporting the developer’s obligations.

Where appropriate, ask whether the buyer’s payments are held in a stakeholder account or another protected arrangement, who controls the account and under what conditions the money can be released. Do not assume that an escrow arrangement exists unless it has been documented and verified.

6. Who Will Hold My Deposit and Subsequent Payments?

Payment arrangements are a central part of off-plan due diligence. Buyers should understand not only how much they must pay but also who receives the money and how it is handled.

Ask:

• Who is legally entitled to receive my deposit?
• Will the money be paid into the seller’s account, an advocate’s client account or another account?
• If an advocate holds the funds, will they be held as stakeholder?
• Under what conditions can the money be released to the developer?
• Are payments tied to construction milestones?
• What evidence will confirm that a milestone has been achieved?
• What happens to my payments if the transaction is terminated?

Understand the difference between a payment schedule and protection for your money.

A payment plan that spreads the purchase price over several months or years can make a property more manageable to buy. However, it does not automatically protect you if construction stalls or the developer fails to complete the project.

If payments are linked to construction milestones, ask who verifies each milestone and what documents you will receive. If funds can be released before the corresponding work is completed, understand the risks.

Never transfer money to an account simply because the sales representative provides the details. Have your advocate independently verify the payee, the account instructions and the payment terms in the agreement.

Keep receipts and written records of every payment.

7. How Much Is the Deposit, and Can I Get It Back?

Off-plan developments may advertise deposits of 10%, 20% or another amount. There is no single deposit percentage that applies to every transaction.

The important questions are what the contract requires and what happens if the transaction does not proceed.

Ask:

• How much is the deposit?
• When must it be paid?
• Is the deposit part of the total purchase price?
• Who will hold it?
• Under what circumstances is it refundable?
• What happens if I cannot obtain financing?
• What happens if I decide not to proceed?
• Can the seller retain all or part of the deposit if I default?
• What happens if the developer is responsible for the transaction failing?

Read the default and termination clauses carefully.

Do not assume that a deposit is automatically refundable or automatically forfeited. The outcome depends on the agreement, the reason the transaction fails and the applicable law.

For example, a buyer who simply changes their mind may be treated differently from a buyer who terminates because the developer has materially breached the agreement. The contract should be reviewed to understand the consequences in each situation.

If you are relying on a mortgage or other financing, ask your advocate to consider what happens if the lender declines your application or approves a smaller amount than expected.

8. Can the Developer Change the Design, Layout or Finishes?

Off-plan buyers commit before they can inspect the completed apartment. This makes the contractual rules governing changes particularly important.

Ask:

• Can the developer change the floor plan after I sign?
• Can the developer reduce the size of the apartment?
• Can the developer change the layout, windows, balcony or room configuration?
• Can specified finishes be replaced with different materials?
• Can shared amenities or facilities be removed or altered?
• Must I consent to material changes?
• What remedies are available if the final apartment differs significantly from the agreed specifications?

Look for clear limits on changes.

Some changes may be necessary because of engineering requirements, authority instructions or practical construction considerations. However, a clause that permits the developer to make broad changes without meaningful limits can leave buyers uncertain about what they will ultimately receive.

Ask your advocate to review any clause allowing substitutions or design changes. The agreement should distinguish between minor changes and material changes that affect the unit’s size, function, value or key features.

If a particular feature is central to your decision, such as a balcony, an ensuite bedroom, a specific parking allocation or a promised amenity, make sure it is documented clearly.

9. What Are the Total Costs Beyond the Purchase Price?

The advertised apartment price is not necessarily the total amount you will spend to acquire and own the property.

Before signing, ask for a written breakdown of the costs that may apply.

These may include:

• Stamp duty, where applicable.
• Legal fees and related disbursements.
• Registration fees.
• Valuation fees, where applicable.
• Mortgage arrangement, valuation and related financing costs, if borrowing.
• Service charges and any initial payments required at handover.
• Utility connection or account charges, where applicable.
• Insurance costs.
• Any separately charged parking, storage or other facilities.

The exact costs depend on the transaction structure, applicable law, the property’s legal status and the arrangements in the agreement.

Ask:

• Which costs are included in the quoted price?
• Which costs will I pay separately?
• Who is responsible for each cost?
• Are any charges estimates rather than confirmed amounts?
• When will each payment fall due?
• Can any charges change before completion?

Do not rely on a verbal statement that the price is “all-inclusive” without checking what that means in writing.

A written cost schedule helps you compare developments more accurately and avoid committing to a purchase that is beyond your actual budget.

10. What Happens If I Need a Mortgage?

Some buyers intend to pay in cash, while others expect to use a mortgage to fund part of the purchase. If you need financing, confirm that the payment schedule is realistic for your circumstances.

Ask:

• Does the developer accept mortgage-financed purchases?
• When must I pay the deposit and subsequent instalments?
• Can the lender release funds before construction is complete?
• What documents will the lender require from the developer?
• What happens if mortgage approval takes longer than expected?
• What happens if the bank values the apartment below the agreed purchase price?
• Can I terminate the agreement if financing is declined?
• Will the developer agree to extend a payment deadline if the lender delays disbursement?

Do not assume that a bank will finance an off-plan apartment simply because the developer is established.

Lenders have their own eligibility requirements, valuation procedures and documentation standards. Some may have restrictions relating to particular projects or the stage of construction.

Speak to your lender early, and ask for a realistic estimate of the amount you can borrow and when the money may become available.

If the contract requires you to make payments before the mortgage can be released, make sure you have a credible plan for meeting those obligations.

11. What Happens If I Miss a Payment?

A payment plan can look manageable when you first book an apartment. However, changes in income, business conditions or financing can make future instalments difficult to meet.

Ask:

• How long do I have to remedy a missed payment?
• Will I receive written notice before the developer takes action?
• Does interest or a penalty apply to overdue amounts?
• Can the developer terminate the agreement?
• Can the developer retain part of the money already paid?
• Is there a process for agreeing to a revised payment schedule?
• What happens if the developer is also in breach of the agreement?

Review the default provisions closely. A missed instalment may have consequences beyond a late fee, depending on the agreement.

Pay attention to the notice period, the time allowed to correct a breach, the remedies available to each party and any limits on the amounts that can be retained.

Do not assume that the developer must agree to a revised payment plan if your circumstances change. If flexibility is important, negotiate it before signing.

12. What Will Happen at Handover?

Handover is more than receiving the keys. Buyers need to understand what the developer must complete before possession and what process will be used to record outstanding defects.

Ask:

• What conditions must be met before handover?
• Will the building have the necessary occupation or completion approvals?
• Can I inspect the apartment before accepting it?
• Will I receive an inspection report?
• How will incomplete work or defects be recorded?
• How long will the developer have to correct agreed defects?
• Can I withhold any payment where the agreement or law permits it?
• When will service charges begin?
• When will I receive the keys, access devices and relevant documents?

Request a written handover and defect-inspection procedure.

Where possible, inspect the apartment with an independent professional who can identify problems with finishes, plumbing, electrical installations, doors, windows and other visible elements.

Record defects in writing and retain copies of the inspection report and correspondence.

The agreement should explain how defects will be addressed and whether any final payment depends on specified handover conditions. Do not assume you can withhold money or refuse handover without consequences; your rights depend on the contract and applicable law.

13. What Legal Ownership Will I Receive After Completion?

The ownership structure is one of the most important aspects of buying an apartment in Kenya.

Depending on the development and its legal arrangements, buyers may acquire a sectional title or another lawful interest. You should understand exactly what form of ownership the developer intends to transfer and what documents will support it.

Ask:

• Will the apartment have its own sectional title, or will another legal arrangement apply?
• What legal interest will be transferred to me?
• What documents will I receive at completion?
• Who will handle the registration process?
• What is the expected process and timeline for registration?
• Will there be a management corporation or another body responsible for common property?
• What rights and obligations will attach to common areas and shared facilities?
• Are there any restrictions on leasing, selling or otherwise dealing with the apartment?

Why does the ownership structure matter?

A buyer needs to understand what they will legally own, not just which unit they have been promised.

For developments governed by Kenya’s sectional property framework, the legal arrangements for individual units and common property should be examined carefully. Do not assume that the mere existence of a sale agreement means the individual title is already available or that registration will happen immediately after handover.

Ask your advocate to explain the documents required for completion and registration, any steps that remain outstanding and what happens if the process is delayed.

14. What Are the Service Charges and Management Arrangements?

Service charges can affect both your cost of living and the investment returns you earn from an apartment.

Before signing, ask:

• What is the estimated monthly or annual service charge?
• What services does the charge cover?
• Who sets and collects the charge?
• How can the amount change over time?
• Is there a separate sinking fund or reserve contribution?
• Who will manage the building after handover?
• How will maintenance of lifts, security systems, generators and shared facilities be funded?
• Are there restrictions on leasing the apartment?
• Are there additional rules for short-term rentals?

Ask for the proposed management arrangements and any available budget or service-charge schedule.

If the building includes facilities such as a swimming pool, gym, landscaped grounds, backup power or lifts, remember that these facilities cost money to operate and maintain.

A low initial service-charge estimate should not automatically be treated as a long-term guarantee. Ask what assumptions underpin the estimate and how the charges may be reviewed after occupation.

For investors, include service charges and other recurring costs in rental-yield calculations rather than comparing apartments using gross rent alone.

15. What Happens If the Developer Uses a Bank Loan or the Land Is Charged?

A development may be financed partly through borrowing. This is not necessarily unusual, but buyers need to understand whether the land or development is subject to a charge and how that affects their purchase.

Ask:

• Is the land or project charged to a bank or another lender?
• If there is a charge, has the lender consented to the proposed sale, where required?
• What arrangements will release the apartment from the relevant security?
• What documents will demonstrate that the apartment can be transferred as agreed?
• Will any charge remain over the property after completion?
• Who is responsible for obtaining the necessary discharge or consent documents?

Your advocate should examine the title and financing arrangements, not simply accept assurances that the developer’s bank will “sort everything out.”

If the property is charged, the agreement should clearly address the steps needed to ensure that the buyer receives the agreed legal interest. The exact documents and process depend on the structure of the transaction.

Do not sign until you understand how the financing arrangements affect your ownership and what must happen before the transfer can be registered.

16. What Is the Developer’s Track Record?

A developer’s previous work can provide useful evidence of its experience, but no track record guarantees that a new project will be completed on time or to the promised standard.

Ask:

• Which previous projects has the developer completed?
• Can I visit a completed project?
• Were the projects delivered close to their advertised timelines?
• Were buyers able to take possession and obtain the promised ownership documents?
• Have there been significant disputes, unresolved defects or delays?
• Who are the contractors, architects, engineers and other key professionals involved in this project?

Where possible, speak directly with buyers in completed developments. Ask about construction quality, communication, handover, service charges and the process of obtaining title documents.

Also verify the developer’s legal identity and the relevant professional or project credentials independently.

Be cautious of relying entirely on testimonials, promotional videos or statements from sales representatives. These can be useful starting points, but they are not substitutes for independent checks.

Equally, a developer’s limited history does not automatically prove that a project is unsafe. It means you may need to place greater emphasis on the project’s legal structure, approvals, funding, professional team and contractual protections.

17. Can I Sell or Transfer My Rights Before Completion?

Your circumstances may change before the apartment is finished. You may need to relocate, sell the investment or transfer your contractual rights to another buyer.

Ask:

• Can I assign or transfer my rights under the agreement?
• Does the developer’s written consent need to be obtained?
• Is there an assignment or administration fee?
• Can the developer refuse a proposed transfer?
• Are there restrictions on reselling before completion?
• What happens to instalments already paid if I transfer my rights?

Some agreements restrict transfers before completion or require the developer’s consent. Others may permit transfers subject to conditions and fees.

Do not assume that you can freely resell an off-plan apartment before receiving title. Your ability to transfer your contractual interest depends on the agreement, the legal structure and any applicable requirements.

If flexibility is important to your investment strategy, ask your advocate to review the assignment provisions before you commit.

18. How Will Disputes Be Resolved?

Even a carefully planned transaction can lead to disagreements. The agreement should explain how disputes will be handled.

Ask:

• Which country’s laws govern the agreement?
• Which courts or dispute-resolution process will apply?
• Is there a requirement to negotiate or mediate before starting formal proceedings?
• Can disputes be referred to arbitration?
• Who pays the legal costs if a dispute arises?
• What notices must be served, and how must they be delivered?

Read the dispute-resolution clause alongside the termination, refund, delay and default provisions.

A clause requiring arbitration, for example, may have cost and procedural implications that you should understand before signing. Do not assume that one method of dispute resolution is always better than another; its suitability depends on the transaction and the circumstances.

Your advocate can explain the practical implications and whether the agreement provides an effective route to resolve likely disputes.

19. Can I Take the Agreement to My Own Advocate Before Signing?

Yes. You should have your own independent property advocate review the agreement before you sign or pay a substantial amount.

The developer’s advocate may be responsible for preparing the agreement and representing the developer. That does not mean the advocate is responsible for protecting your individual interests.

Ask your advocate to review:

• The seller’s legal authority to sell.
• The land title and any encumbrances.
• The relevant project approvals.
• The exact description of the unit.
• The payment schedule and deposit arrangements.
• The completion date and permitted extensions.
• The consequences of delays or non-completion.
• The refund, termination and default clauses.
• The construction specifications and permitted changes.
• The handover and defect-correction provisions.
• The intended ownership and registration arrangements.
• The service charges and management structure.
• Any restrictions on assignment, leasing or resale.
• The dispute-resolution provisions.

If a clause is unclear, ask for an explanation in writing and, where appropriate, a proposed amendment.

Do not feel obliged to sign immediately because a sales representative says that the offer will expire or that the agreement is standard. A deadline may be commercially genuine, but it does not remove the need to understand the legal commitment.

Independent legal advice cannot eliminate every risk. It can, however, help you identify risks, understand your rights and make a more informed decision before committing your money.

20. What Are the Biggest Warning Signs in an Off-Plan Sale Agreement?

Certain issues deserve particular attention. They do not always prove that a transaction is unsafe, but they should be investigated before you proceed.

Watch for:

• Pressure to pay before you have received and reviewed the agreement.
• Unclear evidence of the seller’s authority to sell.
• Refusal to provide documents needed for independent due diligence.
• Unverified claims that all approvals are in place.
• Vague unit descriptions or missing specifications.
• A completion date that can be extended without clear limits.
• Broad rights to change the design, size or finishes.
• Unclear deposit-refund provisions.
• Payment instructions that cannot be independently verified.
• No clear explanation of what happens if construction stops.
• Unclear arrangements for discharging a lender’s charge.
• No credible explanation of the intended ownership and registration process.
• Verbal promises that are absent from the written agreement.

A warning sign is a reason to investigate, not automatically a verdict.

Ask the developer to address the issue in writing and have your advocate assess the response. If essential information remains unavailable or the contractual risks are unacceptable, delaying or declining the purchase may be more prudent than proceeding under pressure.

A Practical Checklist Before Signing an Off-Plan Sale Agreement in Kenya

Use this checklist as a starting point before committing to a purchase.

What to verify	What you should have or understand
Developer and seller	Verified legal identity and authority to sell
Land ownership	Independently checked title and relevant searches
Encumbrances	Clear explanation of charges, restrictions and required consents
Project approvals	Evidence of relevant approvals and disclosure of outstanding items
Apartment details	Exact unit, size, floor, layout and parking arrangements
Specifications	Written finishes, fixtures and agreed features
Purchase price	Clear price and payment schedule
Deposit	Amount, recipient, handling and refund conditions
Construction timeline	Contractual completion date and extension rules
Delays	Remedies and termination rights where applicable
Changes	Limits on alterations to the unit and development
Handover	Inspection process, defect handling and possession conditions
Ownership	Intended legal interest and title-registration process
Ongoing costs	Service charges, maintenance and other recurring expenses
Financing	Realistic funding plan and mortgage-related conditions
Default	Consequences of missed payments and contractual breaches
Resale or assignment	Conditions for transferring contractual rights
Disputes	Applicable law and dispute-resolution process
Independent advice	Agreement reviewed by your own property advocate

This checklist cannot replace a legal review. Each transaction has its own documents, ownership structure and risks. Your advocate should confirm which checks are relevant to the specific development.

Frequently Asked Questions About Signing an Off-Plan Sale Agreement

Conclusion: Understand the Agreement Before You Commit

Signing an off-plan sale agreement is a significant financial and legal commitment. Before proceeding, establish who is selling the property, whether the land and project have been properly checked, what the developer must deliver, when completion is due and what happens if the project is delayed or does not proceed as expected and also access to nearby amenities such as: Shopping Malls, Schools, Hospitals and Entertainment spots.

Pay particular attention to the deposit, payment arrangements, specifications, permitted design changes, refund rights, ownership structure and handover obligations. A flexible payment plan or attractive advertised price does not, by itself, make a development a sound purchase.

Most importantly, have your own independent property advocate review the agreement before signing. Ask questions until you understand the answers, and make sure important promises are recorded in the contract rather than left as verbal assurances.

At Habari Homes, we believe property buyers should make informed decisions based on clear information and realistic expectations. Whether you are considering an off-plan apartment or a completed property in Nairobi, take the time to verify the details and assess whether the purchase suits your needs and budget.

For assistance exploring apartments in Nairobi, contact Habari Homes:
Browse Luxury Apartments For Sale in Theses Area’s: Riverside, Kilimani, Westlands and Kileleshwa

Email: info@habarihomes.com
Phone: +254100888899