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Actioning of sectional property law to delay further

By Wahinya Henry
Friday, September 3rd, 2021 00:00 | 4 mins read
Apartment buildings with shared amenities. PD/Courtesy

A new legislation by the Lands and Physical Planning ministry aiming at extending rights to home and property owners is likely to take a bit longer for implementation to commence.

Lands Cabinet Secretary Farida Karoney says the development of regulations to operationalise the legislation has slowed down the process to commence implementation.

She estimates the process to develop the regulations beyond this months’ deadline will possibly take a year and three months or up to the end of next year.

The CS said the process to generate quality data upon which a survey plan will be generated requires serious scrutiny for the purposes of avoiding past corruption cases.

Major highlights of the law, include measures to ensure titles issued are genuine to cushion owners against being defrauded of property by corrupt individuals

County governments, Institution of Surveyors of Kenya (ISK) and the director of survey will be empowered by the sectional properties act 2020 with the authority to prepare sectional plans.

Legal expert, Wainaina Ireri says the regulations are important and require fast tracking, but suggests that the use of the existing regulations continue as long as they are not in contravention to the Act.

However, Karoney told stakeholders at a recent virtual meeting steered by the chief executive officer of Kenya Alliance of Residents Association (KARA), Henry Ochieng that development of the regulations had reached home stretch.

“If need be, parliament can be petitioned to extend the period for a fresh deadline by which time implementation can be commenced.

A special task force has also been constituted to fast track the development of the regulations,” said Karoney.

The Act

Properties that are affected, include apartments, flats, maisonettes, townhouses or offices (“The Premises”) and wherein there is intention to confer ownership through Long Term Leases.

Sectional Properties Act (No. 21 of 2020) was enacted into law on December 11, 2020. 

The new Act provides for the division of buildings into units to be owned by individual proprietors based on a sectional plan prepared by a surveyor.

The Act requires conversion of all long-term sub-leases intended to confer ownership of apartments, flats, maisonettes, town houses, villas, go-downs or offices

The Sectional Properties Act, 2020 and the Land Registration Act, 2012 requires that all sectional plans submitted for registration be geo-referenced and indicate the parcel number, units’ numbers and approximate floor area of each unit.

For every unit, it will have to be signed by the proprietor and sealed by the Director of Surveys clearly indicating the user of the unit.

In this respect, the ministry has embarked on the process of converting long-term leases registered on the basis of architectural drawings shall be converted to conform to the Sectional Properties Act, 2020 and the Land Registration Act, 2012.

The process of conversion entails submission of a sectional plan, original title, long term lease previously registered, rent apportionment for the unit where applicable

Lack of survey plans in the past resulted in a title being given to more persons and in some cases titles were given, but land was not available, said Karoney citing the case of the government having been a victim.

“In Nairobi alone it was established 700 acres of land was sold to the government. But only 50 acres belonged to the state. The remaining 650 acres was in private hands.

She says it is because of such a scenario that the ministry, through the new Act is keen on cutting out fraudsters and brokers to identify the true owner of a property.

Legal expert Sylvia Waiganjo said the Act is unique in the sense that house or unit owners will be able to share common amenities, such as swimming pools, drive ways, among others.

“Contrary to certain views, this act is aligned to the constitution and the land regulation act,” said Waiganjo.

The Act will lead to the establishment of an Owner’s Corporation after the registration of a sectional plan.

It is mandated with the management and the administration of the estate and the common areas.

A big departure from the previous regime is that the Owner’s Corporation will not own any common areas.

“Upon transfer of contracts, assets and liabilities to the Corporation, the management company will be wound up,” notes lawyer Wendy Kuyoh.

Shared amenities

The Act will only apply in respect to properties that have shared amenities, including flats, maisonettes, townhouses or offices as long as the intention is to confer ownership on different persons sharing the common areas.

 Its application shall only be in respect to land that is held on a leasehold or a freehold title where the unexpired residue of term is not less than 21 years.

Wendy says the Act is timely as it will impact on property ownership in Kenya in various ways.

First, a new title for each unit will be created after the division of an existing structure into units by way of registration of a sectional plan, prepared by a surveyor.

“This will be a change from the old regime where there was one common title that is shared by many people who have long-term leases that entitle them to ownership over their individual units or have a share in the land owning company.

Upon registration of the sectional properties, a certificate of title shall be issued for freehold property and a certificate of lease for leasehold property.

The new title will include the percentage of share owned in a common area. “All the interests, such as charges and easements that are registered against the main title will be endorsed on all the certificates of title that will be issued in respect to the sectional units.

The new Act requires that all the plans presented for registration as a sectional plan shall be geo-referenced.

This means that the plan must be referenced using a specific location either on, above or below the earth’s surface.

The effect on securities held on original unconverted titles is that when a sale of sectional unit is completed, the buyer of the unit gets partial discharge of the charge in relation to their sectional title.

Before renting out of a sectional unit to third party tenants, the Act requires that the unit owners must give a written notice to the corporation of the intention to rent out the unit accompanied with details of the tenant.

 Within 28 days of ceasing to rent the unit, a written notice should be given to the corporation.

Where there are still unsold units, there can be a transfer of the unsold units to the developers and, thereafter, transfer of reversionary interest to the management company.

“It is important for all property owners to comply with the Act as the failure to comply with the Act will attract a fine not exceeding Sh250,000,” he advises.

According to Wainaina Ireri, the fear among stakeholders is in regard to the simultaneous registration of the sectional plan and the corporation 

“This means that the Management Companies will be rendered obsolete and all the function they undertake will be taken over by the corporation established under the Act,” says Wainaina in conclusion.

Wahinya Henry

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