Building A Home In A Controlled Development Part 2
Controlled developments may be a part of master-planned communities, which fall under common interest properties. While our first post focused on the concept of controlled developments in a horizontal manner, this post considers them vertically, where on one piece of land, sit several housing units. The current Kenyan legal framework is primarily regulated by the Sectional Properties Act 2020. This is an act of parliament to provide for the division of buildings into units to be owned by individual proprietors and common property to be owned by proprietors of the units as tenants in common and to provide for the use and management of the units and common property. While controlled developments have traditionally been limited to an understanding of horizontal parcels (like BuruBuru, certain areas of Lavington, Runda, etc.), the concept has taken root regarding vertical developments such as apartments and flats.
SUB- DIVISION OF PROPERTY IN A CONTROLLED DEVELOPMENT
The re-enactment of Sectional Properties Act (No. 21 of 2020) provides for the division of units into units to be owned by individual proprietors based on a sectional plan prepared by a surveyor. The Sectional Properties Act, 2020 and the Land Registration Act, 2012 require that all sectional plans submitted for registration must at a minimum,
- be geo- referenced
- indicate the parcel number
- indicate units’ numbers and the approximate floor area of each unit
- be signed by the proprietor
- be signed and sealed by the Director of Surveys; and
- clearly indicate the user of the unit, namely, residential, or commercial or both.
Section 4 of the Sectional Properties Act provides that an existing structure may be designated a building containing a unit or part of a unit or divided into two or more units by the registration of a sectional plan prepared, by a surveyor, from a building plan that has been approved by a county government. To prepare a sectional plan, the surveyor needs to be presented with proof of ownership of the parcel or unit to which the sectional plan shall apply.
A sectional plan shall 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 parcel which shall be updated from time to time on a need basis.
Section 5 stipulates that as soon as a sectional plan is registered, the title to a unit comprised in the plan, with effect from the date of registration of the sectional plan shall be deemed to be issued under the Land Registration Act, 2012. Further on registration, the registrar shall register the share in common property apportioned to the owner of the unit and include a certificate that indicates the share in the common property on the title deed for sectional property issued in respect to the unit registered under Section 5 (1) (c).
The Act provides that common property registered in a sectional plan shall be held by owners of all units as tenants in common in shares proportional to the unit factors for their respective units. If you would like more details on this, please book a consultation with us by contacting law@ammlaw.co.ke.