There is a general fixation in Kenya towards owning real property, it is the dream of a great many Kenyans to own a home or land. This factor has contributed a great deal to the development of legal regime in property law hence the need for proper land administration and land registration. We also have to recognize that this dynamic has influenced the economies of scale since as the demand increases land as a resource, becomes scarcer. In Kenya the notion that the only way for growth and development in real estate is up, "to the sky's" they say, the government's policy has lauded utilizing parcels of land for sustainable multi-dwelling units. It has become increasingly important for the government and the to develop property laws that confer rights in real property through sectional titles.
Historical Development of Sectional Titles in Kenya
As land law developed over the year, immediately after independence the Registered Land Act Cap 300 now repealed was the only act that dominantly in the post-colonial era birthed sectional titles. As the trend was picking up over the 1970s and forward, developers who held interest in land under other subsisting forms of land ownership which predated the RLA, such as the Government Lands Act (Cap. 280) Laws of Kenya, the Registration of Titles Act (Cap. 281) Laws of Kenya could not implement or realize the conversion of their land interests to sectional property. The new constitutional dispensation of 2010 breathed fresh air to the land law regime as it was known. The multiple legislations that formed the land regime were collapsed into 3 principal acts, The Land Act, Land Registration Act and in this context the Sectional Properties Act 2020 that came to replace the repealed Sectional Properties Act of 1987.
The Conversion Process Under the Act
The Sectional Properties Act, 2020 was enacted to facilitate the conversion of interests in land into sectional titles. The conversion process is governed by the Sectional Properties Regulations, 2021, which provide procedural guidelines for registration, management, and governance of sectional properties. Under Section 13 of the Act, the owner of a parcel of land, typically a developer, may apply for the conversion of an existing title into sectional titles. Upon such application, the Registrar of Titles is mandated to close the mother title's register and open a new register specifically for sectional titles. The effect of this conversion depends on the nature of the original land tenure. If the mother title is a freehold title, it results in freehold sectional titles, whereas if it is a leasehold title, it gives rise to leasehold sectional titles. In cases where long-term sub-leases (LTBs) exist, they too may be converted into sectional titles through the closure of the LTB register and the establishment of a sectional title register. This ensures uniformity and compliance with the new regulatory framework.
Required Documentation and Planning
A crucial requirement in this process is the preparation of a sectional plan, as stipulated in Section 11 of the Act. This plan must be prepared by a licensed surveyor and submitted for approval. The process entails an architect preparing sectional plans, which must be approved by the Architectural Association of Kenya (AAK) and the relevant municipal authority. Following construction, a licensed surveyor geo-references each unit in accordance with the building plan, floor plan, and unit plan. Once the sectional plan has been approved, it is submitted to the Survey of Kenya for registration, thereby enabling the issuance of individual sectional titles.
Management Corporations Under the Act
Upon the registration of sectional plans, a statutory management corporation is automatically formed, as provided under Section 17 of the Act. Unlike conventional companies incorporated under the Companies Act, this corporation is incorporated directly under the Ministry of Lands and Physical Planning. The statutory corporation is a juristic entity with a separate legal identity, tasked with managing the sectional property. Ownership of units in the apartment confers shares in the management corporation, including an interest in the common areas, which are collectively owned under a proportional share arrangement.
Conclusion and Legal Implications
The process of creating and developing sectional titles involves multiple stakeholders, each with distinct roles governed by an intricate legal framework. Compliance with the Act and Regulations is crucial in ensuring a seamless transition from traditional land tenure systems to sectional ownership structures. Given the complexity of these legal requirements, it is imperative to engage legal professionals to oversee the process, ensuring due diligence and adherence to statutory obligations. The conversion of land interests into sectional titles represents a significant regulatory shift aimed at enhancing property rights, efficient land use, and effective management of shared spaces.
At Babu Law Firm, we provide comprehensive legal services to guide developers, property owners, and investors through the complexities of sectional property registration and management. Our team has extensive experience in navigating the requirements of the Sectional Properties Act, ensuring compliance and protecting our clients' interests throughout the process.
