Do you own a sectional property title for your flat?

BY Julius Kobado

The rapidly escalating value of land and the ever rising cost of building materials have forced developers to shift from individual houses and maisonettes to flats and apartments. This not only increases occupancy density but also lowers unit prices.

The Ministry of Lands registers flats and apartments under the Registration of Documents Act.

However, under Survey Act Cap 299 Laws of Kenya, a developer who wishes to sell individual flats/apartments without involving a survey of the flats can apply for Registration of an architect’s plan of the building on which the units are serially numbered under Registration of Documents Act.

After registering the architect’s plan, any unit shown on it can be transferred with reference to the registered plan. The transfer instrument takes the form of a lease or sub-lease in which each owner of a unit enters a covenant with the developer for the use and maintenance of common areas.

Registration of flats/apartments under Registration of Documents Act, however, has some disadvantages.

The plans used to support issuance of titles to flats are not prescribed in the Act.

Individual and common properties are not prescribed in the Act and are, therefore, left to different interpretations.

It is not mandatory that there should be a management company to manage the units and common property.

A company incorporated under the Company Act is not suitable for the management of common services as the Registrar of Companies can strike it from the register with serious consequences to the owners of the flats and any financier with a mortgage on the title.

Land Registry can issue titles to a multiplicity of valid flats on the same parcel of land.

Registration of Sectional Property Titles, however, solves all the above problems.

Sectional Property Act of 1987 provides for division of buildings into units to be owned by individual proprietors of the units as tenants in common and for the use and management of the units and common property.

A sectional property survey is done after construction of a block of flats/apartments. A surveyor determines measurements and positions after the construction is registered and guaranteed by the Government. The survey plans provide guaranteed measurements and authoritative positions of what exists and is owned.

The Director of Surveys keeps the sectional property survey records as Government property. The architectural plans filed by the Director of Surveys are as per the completed building. They are not the same as architectural plans filed before construction, which are sometimes amended during construction.

Banks and other financial institutions give preference to registered titles under specific laws other than documents.

Registration of sectional property titles is done under Registered Titles. It is only applicable where the titles on which the building is erected are either freehold or leasehold with un-expired term of not less than 45 years.

On registration of the Sectional Property Plan, the register of the parcel described is closed. A separate register for each unit is opened and title deed issued in respect of each housing unit.

No title deed is issued to common property but upon registration of a Sectional Property Plan, a register is opened for the common property, which acts as a medium for recording such matters as the schedule of unit entitlement, the addresses for service of notices on the body corporate and alterations of bylaws.

Upon registration of a Sectional Property Plan, a corporation is incorporated by the act of registering the plan and not by filing of any documents with the Registrar of Companies under the Company Act.

Sectional Property Titles is therefore the best security for flats and apartments.

The writer is a registered and licensed land surveyor.

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