Understanding Ownership under sectional title in Kenya
What is a sectional title unit?
A Sectional Title Unit consists of a section of a building’s together with an undivided share in the common property. All the sections, together with the common property, comprise ‘the Scheme.’
What is the common property?
The common property comprises the areas used by all owners, e.g. the grounds, driveways, roads, recreation facilities, corridors, entrance areas and the exterior of the building.
What are exclusive use areas?
In some cases, parts of the common property are defined as a private use area, and the right to the exclusive use of such area is conferred on an owner, e.g. parking bay. Exclusive use rights can be acquired and held in terms of the rules applicable to the scheme or by way of Notarial Cession as exclusive use rights. In many instances, areas which appear to be exclusive use may, in fact, be rented from the Body Corporate, in which case they do not enjoy the status of ‘exclusive use rights’. See our article on differences of sectional and title ownership.
Is ownership acquired the property purchased under the sectional title?
Yes, ownership rights are registered in the Deeds Office and a Title Deed (or Notarial Cession in the instance of certain exclusive use areas) is issued upon registration of the Sectional Title unit as proof of ownership.
Who controls the Scheme?
The Body Corporate is responsible for the control, administration, and management of the Scheme.
What is the Body Corporate?
All the owners of the Scheme constitute the Body Corporate. At an Annual General Meeting of all the owners, Trustees are elected to carry out the day to day running of the Scheme. In many instances, especially with bigger schemes, the Trustees use the services of a Managing Agent to assist them.
What are levies?
The levy consists of all the anticipated costs of the running of the Scheme and usually includes-Rates and Taxes payable to local authority by the scheme, Water Electricity costs relating to the lighting in the common area, Insurance replacement costs of buildings in the Scheme, Provision for anticipated maintenance expenditure, Managing agent fee, Annual audit fee.One of the primary functions of the Trustees is to set a monthly levy for each unit.
How is the amount of the levy determined?
The trustees will calculate the total annual budget required for the running and maintenance of the Scheme. The budget will be made up from, among other things, the items mentioned above. The annual total is reduced to a monthly budget, which in turn must be collectively paid by the individual owners. The levy payable by any one owner is calculated by the percentage of the floor area of that owner’s section to the total floor area of all the sections in the Scheme, otherwise known as the participation quota.
What are the management rules?
The Sectional Titles Act contains provisions regarding the administration of the Scheme, e.g., How Trustees are elected, what the obligations of the Trustees are, what the voting procedure is at general meetings, etc. It is possible for the Body Corporate, by unanimous resolution to amend, substitute, add to or repeal the conduct of House Rules from time to time.
What are conduct rules?
Each Scheme has a set of conduct rules (or house rules) to regulate the conduct of owners in the Scheme to ensure acceptable behavior by all the owners, e.g., rules regarding the keeping of pets, refuse removal, etc. It is possible for the Body Corporate, by special (75% majority) resolution, to amend, substitute, add to or repeal the conduct rules from time to time.
What are the duties of an owner?
An owner shall:
- Permit any person authorized in writing by the Body Corporate, at all reasonable hours on notice (except in the case of emergency, when no notice shall be required), to enter his / her section or exclusive use area for various purposes. That includes inspecting it and maintaining, repairing or renewing pipes, wires, cables and ducts existing in the section and capable of being used in connection with the enjoyment of any other section or common property to ensure that the provisions of the Act and the rules are being observed;
- Carry out all work that may be ordered by any competent public or local authority in respect of his / her section, other than such work as may be for the benefit of the building generally, and pay all charges, expenses, and assessments that may be payable in respect of his / her section;
- Repair and maintain his / her section in a state and, in respect of an exclusive use area, keep it in a clean and neat condition; Use and enjoy the common property in such a manner as shall not unreasonably interfere with the use and enjoyment thereof by other owners or other persons lawfully on the premises;
- Not use his section or exclusive use area, or permit it to be used in such a manner or for such purposes as shall cause a nuisance to any occupier of a section; Ensure use of the section for what it was intended i.e. residential, business
Can a unit be subdivided or extended?
Yes, but only after:
- The approval of the Body Corporate
- The approval of the Local Authority
- A sectional plan for subdivision/extension has been drawn by a land surveyor and approved by the surveyor general;
- An application to the Deeds Office to register the extension or subdivision is made.