The Sectional Properties Act, 2020 was enacted in December 2020 at a time when laws were evolving due to the pandemic. The Act has brought about major changes that have not only seen the Ministry attempt to go digital but also made it easier for the ministry to set the records straight and eradicate any titles obtained through fraud or obtained on public land.
This Article will focus on the preparation and registration of sectional plans and units.
Ambit of structural property:
Section 4 of the Sectional Properties Act 2020 makes provision for what is designated as fit for registration of a sectional plan which is a structure or building containing a unit or part of a unit divided into two or more units by the registration of a sectional plan prepared by a surveyor from a building plan approved by the county government. In order for the surveyor to prepare a sectional plan, the Applicant has to present proof of ownership of the parcel or the unit to which the sectional plan shall apply. . It is important to also note that the said units only qualify for registration under the Act if there is an intention to confer ownership. In instances where units are for lease, they cannot be registered under the Act since there has to be a sale that confers ownership.
The sectional plan ought to be accompanied by an application for registration by the corporation and a list of the persons who are the owners of the units in the said parcel of land. The said list can also be amended from time to time on need basis.
Every plan that is presented for registration as a sectional plan must:
- Be described in the heading of the plan as a sectional plan.
- Be geo- referenced.
- Bear a statement containing particulars required to identify the title to the parcel.
- Include a drawing illustrating the units and distinguishing the units by numbers or other symbols.
- Show the approximate floor area of each unit.
- Have endorsed on it a schedule specifying in whole numbers the unit factor for each unit in the parcel.
- Be signed by the proprietor.
- Be signed and sealed by the officer or authority responsible for survey.
- Have endorsed on it the address at which the documents may be served on the Corporation concerned.
- Clearly indicate the user of the unit.
- Describe two or more units
Every plan that is presented for registration as a sectional plan ought to be endorsed by:
- A surveyor stating that the structure shown on the plan is within the external surface boundaries of the parcel which is the subject of the plan and if there are any amenities beyond the boundaries, that an appropriate easement has been granted as an appurtenance of the parcel. The Surveyor ought to apply for the endorsement by the county government to the County Executive Committee member responsible for approval of buildings.
- A certificate from the county government stating that the proposed division of the structure as illustrated on the plan has been approved by the county government.
- In the event that the plan presented for registration as a sectional plan is in respect to a building containing units, in addition to the certificate required, the plan ought to be endorsed by a surveyor or such other person.
For the Registrar to submit to the county government of the area in which the parcel is located, a copy of the sectional plan ought to be submitted in quadruplicate within twenty- one (21) days from the day a sectional plan is registered.
In the event that the respective County Government is satisfied that the structure conforms to the development scheme, development control by- law, zoning by- law or land use by- law and that any permit issued under that scheme or by- law that existed at the time the building permit was issued, an endorsement is issued within thirty (30) days.
The new procedure as stipulated in the 2020 Act is that upon the registration of a sectional plan the Registrar closes the register of the parcel described in it and open a separate register for each unit described in the plan. The rationale behind this was in order to register all the encumbrances on that particular unit.
Upon the payment of the prescribed fees, the Registrar shall issue a certificate, which can be either a certificate of title for freehold property or a certificate of lease if the property is a leasehold clearly indicating the proportionate share in the common property.
Each register created ought to refer to one unit save for the common property apportioned to the owner of that unit. Any interests affecting a unit, which is part of a cx sectional plan, shall be endorsed on the registered unit and the title deed for sectional property issued in respect of the unit.
The Act is also clear that any sectional plan registered and any dealings and dispositions regarding the unit shall be done in accordance with the Land Registration Act, 2012.
The Act provides for the sharing of the common shares in proportion of the units held. The share in the common property shall be included in the title deed issued. The common property comprised in the registered sectional plan shall be held by the owners of all the units as tenants in common in shares proportional to the unit factors for their respective units.
Even in instances where one individual owns all the units, the Act is clear that the units and the common property shall be treated as though they are owned by different owners for each of the units.
It is important for unit owners to note that they have a right of support in terms of gas, electricity and other services over the property and every structure for the reasonable enjoyment of the common property or the unit. Unit owners also have the right to a free and uninterrupted access and use of light to or from any windows or doors. These rights enjoyed at the date of registration carry with them all ancillary rights necessary to make them effective as if they were easements.
In the event that a proprietor would like to subdivide or consolidate units they must first seek the approval of the county government and proceed with the subdivision and consolidation. A sectional plan relating to the unit that ought to be subdivided or consolidated is thereafter registered. The registrar first amends the original sectional plan endorsed by the registrar before registering the proposed sub- division or consolidation.
All long term sub- leases that are intended to confer ownership of an apartment, flat , maisonette, townhouse or office that were registered before the Act came into force ought to be reviewed to ensure that they conform with the Land Registration Act, 2012. An owner who had already paid stamp duty for a sub- lease is not required to pay stamp duty during revision. The revision may be initiated by the owner, developer or management company. The Act has given a timeframe of two years since the commencement of the Act. This has however proven to be difficult since the Regulations that ought to govern the procedures has not been published.
In the event that a developer is not willing or available to surrender the title of the parcel for purposes of compliance, the Registrar has the authority to dispense with the production of the original title. In the event that a proprietor fails to comply, then the Registrar has the authority to register a restriction against the title of the parcel preventing any further dealings on it.
Upon registration of the sectional plan and issuance of a certificate, there are implied easements that the owner is entitled to with respect to the access and quiet enjoyment of common property. The newly created registers contain all the details of the units including encumbrances.
Disclaimer The above article is meant for general information and does not constitute legal advice. In case of any inquiries or if you require any further information or advice on how to register sectional plans as well as compliance with the Sectional Properties Act, 2020, please feel free to contact us at [email protected] or visit our offices on 8th Floor, CMS Africa House, Chania Avenue, Nairobi or on 3rd Floor, Ritah Plaza, along the Kakamega- Kisumu Highway ,Kakamega.