By Jerameel Kevins Owuor Odhiambo
The Sectional Properties Act, 2020 revolutionized apartment ownership in Kenya by replacing the outdated 1987 Act and establishing a comprehensive framework for registering and owning individual units within a building. According to Section 2 of the Act, a “sectional property” is defined as land divided into units, each owned individually while sharing common elements with other unit owners. The Act mandates that each apartment unit must have its own separate title deed, fundamentally changing the previous system where apartments were typically held under a single mother title. Section 4(1) of the Act requires all long-term subleases (exceeding 21 years) of apartments or flats to be converted to sectional properties within two years of the Act’s commencement. Section 7 of the Act establishes that once a sectional plan is registered, individual title deeds can be issued for each unit, granting purchasers direct ownership rather than merely leasehold interests.
When selecting an apartment for purchase, buyers must verify the development complies with the Sectional Properties Act, 2020, particularly Section 9 which requires buildings to have approved sectional plans. These sectional plans must clearly define individual units, common areas, and unit entitlements as required by Section 10 of the Act. The development must have received all necessary approvals from the county government, including architectural plans approval and development permission under the Physical and Land Use Planning Act, 2019. Section 5 of the Sectional Properties Act requires geo-referencing of all sectional plans before registration, ensuring accurate property boundaries. The developer must have submitted a schedule of unit entitlement, certified by a surveyor, showing the floor area of each unit relative to the total floor area of all units as mandated by Section 11 of the Act.
Before committing to purchase, prospective buyers must conduct a search at the Land Registry to confirm that the sectional plan has been properly registered in accordance with Section 7 of the Sectional Properties Act. Section 14 of the Land Registration Act, 2012 requires confirmation of the ownership history and verification of any encumbrances, caveats, or restrictions registered against the property. Buyers should verify the developer’s compliance with Section 38 of the Sectional Properties Act regarding the establishment of a management corporation for administering common areas. According to Section 6 of the Sectional Properties (Registration) Regulations, 2021, buyers should inspect the registered sectional plan to confirm their specific unit details and boundaries. Additionally, confirm compliance with Section 22 of the Land Act, 2012, which prohibits the transfer of land without proper subdivision or sectional plans approved by the relevant authorities.
The sale agreement must explicitly identify the apartment as a sectional property unit with reference to its specific unit number as shown in the registered sectional plan, as required by Section 8 of the Sectional Properties Act. The agreement must include details of the unit’s entitlement to common property as calculated under Section 11 of the Act, typically expressed as a percentage. According to Section 43 of the Land Act, 2012, the agreement must include all pertinent details including payment terms, completion date, and the specific process for transferring title. For apartments purchased through mortgage financing, Section 56 of the Land Registration Act, 2012 requires the charge instrument to be registered against the specific unit title. The agreement should include clauses addressing any responsibilities related to the management corporation established under Section 17 of the Sectional Properties Act, including initial service charge deposits and participation obligations.
The transfer process begins with the execution of a transfer instrument in the form prescribed by the First Schedule to the Land Registration (General) Regulations, 2017. According to Section 45 of the Land Registration Act, 2012, the instrument must be presented to the Land Registrar together with the original title, executed sale agreement, and proof of payment of all applicable fees and taxes. The buyer must pay stamp duty, currently at 4% for urban properties as per the Stamp Duty Act (Cap 480), calculated on the purchase price or market value, whichever is higher. Section 38 of the Sectional Properties Act requires that upon transfer, the new owner must be registered as a member of the management corporation with voting rights proportional to their unit entitlement. The Land Registrar must update the register to reflect the new ownership and issue a notification to the management corporation as required by Regulation 12 of the Sectional Properties (Registration) Regulations, 2021.
Upon successful registration of the transfer, the Registrar issues a title deed to the purchaser in accordance with Section 24 of the Land Registration Act, 2012. The title deed for a sectional unit must contain specific information as prescribed by Section 13 of the Sectional Properties Act, including the unit number, floor area, and proportionate share in common property. The title deed must refer to the registered sectional plan and include conditions, restrictions, and easements applicable to the unit as stipulated in Section 26 of the Land Registration Act. According to Section 14 of the Sectional Properties Act, the title deed grants ownership of the unit’s airspace and all fixtures within the unit boundaries. The Registrar must also update the sectional property register, which under Section 16 of the Sectional Properties Act serves as conclusive evidence of the title holder’s rights to the unit.
Upon receiving the title deed, the new owner automatically becomes a member of the management corporation with responsibilities delineated in Section 17 of the Sectional Properties Act. The owner must comply with all by-laws established by the management corporation as authorized by Section 29 of the Act, regulating the use and enjoyment of individual units and common areas. Section 22 of the Sectional Properties Act obligates the unit owner to pay service charges for the maintenance of common areas in proportion to their unit entitlement. The apartment owner must notify the management corporation of any leasing or change of use of the unit as required by Section 28 of the Act. Additionally, under Section 26 of the Sectional Properties Act, any subsequent transfer or encumbrance of the unit must follow the same formal procedures established for the initial transfer, ensuring continuity in the property’s legal status.
The Writer is a legal scrivener
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