Why it might take longer to have your sectional title in that block of flats

While an owner of a unit does not own what is below or above their uni. [iStockphoto]

The repeal of the Sectional Properties Act of 1987 in 2020 was an exciting prospect for tenants who wanted to have legal documentation proving ownership of their space.

They wanted proof to show they are the individual proprietors of the properties shared with other tenants.

It revised some crucial clauses of the 1987 Act and was aligned with the new 2010 Constitution.

However, nearly two years later, some landlords remain sceptical of ceding their titles, which would pave way for tenants to own sectional titles. Such property owners would rather keep such people as tenants and charge a monthly rent.

Bernard Wanjohi, a land surveyor notes that many landlords are not happy to see their houses change into sectional properties – at a time when the prospect of rent collection looks more attractive.

It is also expensive for land owners to go through the process of converting title deeds in rural areas where the boundaries are mainly unclear.

And with more people having constructed their rentals on lands set aside for agricultural purposes, many do not want to go down a road that involves the process of change of use of land, which many find lengthy.

“Apart from the fact that many will want to continue enjoying collecting rent, it is a lengthy process to obtain the sectional plans, and for many, cumbersome too,” he says.

“They have to go through a whole process of surveying again, and they also have to cede their title, which few are willing to do.”

Confer ownership

The Sectional Properties Act applies only in respect of land held on freehold title or on a leasehold title where the unexpired residue of the term is not less than 21 years and there is an intention to confer ownership.

A building is subdivided into units, after which there is registration of a sectional plan prepared by a surveyor. The sectional plan is obtained from a building plan that has been approved by a county government.

Each unit owner has a title to show for the area they own. They then share common property - staircases, swimming pools, parking lots and backyards, and areas that are shared by the unit owners or owned by proprietors of the units as tenants in common.

“Such vertical development optimises available land and facilitates real estate ownership by more people. It’s, therefore, good for high land value and high population density jurisdictions. It will support Kenya’s affordable housing scheme,” said Ibrahim Mwathane, a consultant in surveying and land information management.

Mr Ibrahim Mwathane said the repealed Act aligned “the framework to the current Constitution and the new land laws”.

“For instance, references to local authorities as approving entities, and the repealed Registered Land Act on which the 1987 Act pegged registration, have been changed. Approvals are now to be done by county governments, and registration will be effected under the Land Registration Act, 2012,” Mwathane wrote in his blog.

The law changed, among other requirements, the unexpired leasehold term of the title from 45 years or more for sectional plans to be registrable to 21 years.

But the execution of the mandate by responsible players has been difficult as people who should be at the forefront of its execution are often not armed with enough knowledge.

“We may have laws and regulations, but often, we lack institutional capacity,” Mwathane said.

This is even as some experts expected to be behind the actualisation of some of these projects seem to not be conversant with what they are tasked with.

“We have cases of people applying to register plans under the Sectional Property Act ending up frustrated, and we have offices where officers don’t understand the rules. There has been a dearth of information,” Mwathane told Real Estate in a previous interview.

Local authorities have also been slow in approving sectional plans as they lack expertise, thus stalling registration processes.

Once the sectional plan is registered, the Registrar is mandated with closing the register of the parcel described in it and opening a separate register for each unit described in the plan.

A unit is a space situated within a building and described in a sectional plan by reference to floors, walls and ceilings within the building.

The law also requires that on payment of the prescribed fee in respect of each unit of the sectional property, a certificate of title (if the property is freehold) or a certificate of lease (if the property is leasehold) is issued to each unit owner, with the proportionate share in the common property.

Every plan presented for registration as a sectional plan must be geo-referenced - its coordinates must accurately match the ground coordinates of objects depicted on the map.

Among other factors, the plan must show the approximate floor area of each unit, have endorsed on it a schedule specifying in whole numbers the unit factor (the fraction of a unit to the total surface area) for each unit in the parcel and must be signed by the proprietor and signed and sealed by the office or authority responsible for survey.

While an owner of a unit does not own what is below or above their unit, they enjoy benefits, including easements from their neighbours.

They enjoy subjacent and lateral support, shelter and passage or provision of water, sewerage, drainage, gas, electricity, garbage, artificially heated or cooled air,

Other services include telephone, radio and television services through or by means of any pipes, wires, cables or ducts for the time being existing within the unit.

Their units are also able to offer other units the same benefits.

In the new law, a corporation, which consists of owners of the units, was tasked with making the by-laws that govern the premises.

“The corporation is a body or corporate body created automatically by law upon registration of a sectional plan for sectional units and consists of all owners of the sectional units on the building (corporation),” notes Dentons Hamilton Harrison & Mathews, a law firm.

“A Corporation is permitted to engage the services of a property manager where necessary to ensure the property is well managed. Under the new Act, the powers and duties of the corporation are to be exercised by the board of the corporation.” The new act did away with the mandatory requirement for the appointment of an institutional manager to manage the units, the common property, and the movable and immovable property of a corporation.

Corporations now cannot make by-laws that permit a material change in use or density of common properties without the approval of the relevant county.

Any such by-laws made by the corporation shall have no force or effect, Dentons Hamilton Harrison & Mathews explains.

Further, the new Act only permits the corporation to grant a lease to the owner of a unit for the exclusive use of an area or areas of the common property following a unanimous resolution.

Previously, the repealed Act permitted the disposition of common property or any part of it by way of transfer or lease.