Safeguarding Shared Property
The Sectional Properties Act 2020, which repeals and replaces the Sectional Properties Act, 1987, gives effect to the provision of the Land Registration Act, 2012 and redefines the manner of establishment and registration of sectional properties in Kenya.
The modernization of the sectional Act 2012 is by far one of the legal instruments enabling affordable housing policies since prices of property acquisition are always high in urban areas.
Sectional property in simple terms refers to property division into units that share a common area but have boundaries which are defined according to ceiling, floors and walls. This would mostly be common in flats and apartments but can also apply to commercial office spaces, town houses as well as maisonettes, which are conveyed not as rental units but in the form of ownership.
Once a sectional property plan has been registered, the original register will be closed and a new register opened with respect to each of the units. The property under the register will comprise of both the unit itself and the unit’s share of the common areas. Therefore, a ‘tenancy in common’ is created with respect to the common areas.
In the case of a freehold, a certificate of title will be issued for each of the unit. In the case of leasehold, a certificate of lease will be issued. Notwithstanding the regime of the original title to the property, all sectional plans registered under this Sectional Properties Act 2020 will automatically convert to a title under the Land Registration Act 2012.
The definition of opening an individual register is that, a legal interest can be registered with respect to just one unit, which will in turn not affect the rest of the units. The developer of the plan should be able to work on issuance of a partial discharge with respect to the one unit in the occasion where the purchaser has submitted the final pay on the purchase price even if the rest of the units are still under legal charge.
Even though the Sectional Property converses ownership in the unit, there are restrictions which are imposed on the owners of each individual unit in favor of the other units. Some of the common restrictions are that a unit owner cannot be allowed to modify his unit in a manner that interferes with the structural sanctity of an adjoining unit or cause nuisance to the other unit holders. Similarly, if an owner decides to rent out his unit to a tenant, he is required to notify the corporation.
Compliance to the set rules is solely enforced by the corporation.
The corporation established under this Act will be liable for legal claims that relate to the common area of the property and any amount payable by the corporation by virtue of a court’s pronouncement shall be guaranteed by all of the owners to the units. This is efficient if the claim arose out of the negligence of either of the proprietors, those individuals will be enjoined as co-defendants to the claim.
The Sectional Properties Act regulates the manner in which they can dispose the units and the specific documents that ought to be handed to a prospective purchaser before a transfer can be registered. The Act further provides for three ways in which the sectional property status can be terminated. This is either through a unanimous resolution, if the building is not fit for human habitation or through compulsory acquisition.
This law goes a long way in restoration of confidence in sectional property transactions and consequently paves way for confidence in home ownership adopting the sectional property approach.
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