HIGHLIGHTS OF THE SECTIONAL PROPERTIES REGULATION, 2021

1.  Introduction
   

Parliament enacted the Sectional Properties Act, 2020 (the Act) brought before the National Assembly in 2019 by the Garissa Township Member of Parliament, Hon. Aden Duale and assented by the President in December 2020. The Act repealed the Sectional Properties Act, 1981 (the Repealed Act). Consequently, the Cabinet Secretary for Lands and Physical Planning, Hon. Farida Karoney made the Sectional Properties Regulations, 2021 (the Regulations) exercising powers conferred on her by section 59 of the Act on the 26th November, 2021. This was just slightly less than a year after the enactment of the Act. 

The Key Objectives of the Act include:

1. 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 based on a sectional plan prepared by a surveyor, 
   

2. To provide for the use and management of the units and common property; and, 
   

3. To address the contemporary challenges associated with ownership of property in a sectional property environment.
   

Of note is that the Act requires conversion of all long-term sub-leases intended to confer ownership of apartments, flats, maisonettes, town houses, villas, go-downs or offices that do not conform to Section 54(5) of the Land Registration Act, 2012 within two (2) years of the commencement of the Act.

2.  Overview of the Processes brought about by the Regulation
   

No.	THE PROVISIONS UNDER THE REPEALED ACT	THE PROVISIONS UNDER THE ACT	THE PROVISIONS UNDER THE REGULATION
1.		Sectional Plans The Act provides that a structure may be designated a building containing units, parts of a unit or divided into two or more units by the registration of a sectional plan prepared by a surveyor.	Sectional Plans The Regulation provides however on how the surveyor is to prepare the sectional plans. It provides that- A surveyor can prepare sectional plans by using existing structures which can be designated a building containing a unit, part of a unit or divided into two or more units. The regulation also provides for the manner in which sectional plans can be presented, including, being prepared in sheets
2.		Registration of Sectional Plans The Act provides that a Sectional plan shall be accompanied by an application for registration by the corporation and a list of persons who are the owners of the units in the parcel that will be updated from time to time	The Signing and Endorsement of Sheets The regulation on the other end provides for the requisite documentations that are needed before submission of application for registration and for successful registration.  The Regulation provide that- The plan must be endorsed by the following persons before registration: A surveyor A certificate from the County Executive Committee Member in charge of approval of buildings The owner of the property The Land Administration Officer
3.			Requirements of Plan Sheets The sheets shall bear the statements “Sites and Building Location Plan” and “Floor Plan.”
4.			Registration of Sectional Plans A person who wishes to register a sectional plan must apply for registration in Form LRA 9 provided under the Sixth Schedule of the Land Registration General Regulations, 2017.  The application must be accompanied by the following details: The Original Certificate of Title or Lease to the parcel. An application for the registration of the corporation. The Registrar is required to consider the application and register both the sectional plan in a Sectional Plan Register and the Corporation in the Corporation Register. Thereafter the Registrar shall open Unit Registers and issue a Certificate of Title for freehold and a Certificate of Lease for a Leasehold.
5.			Subdivision and illustration of Units The Regulation, however, goes ahead to provide for how the units can be subdivided or consolidated to give light to s.4 of the Act, it provides that- A person can apply for the subdivision of a unit or units and before making the registration, the Registrar must ensure the endorsement of the notification of the subdivision on the original registered sectional plan and indicate on the diagram in the original sectional plan that the unit (s) are subdivided. In cases where the unit in question is charged or encumbered, the Registrar must ensure the production of consent of the charge or encumbrancer before the sectional plan of subdivision is registered.
6.			Consolidation and Illustration of Units A person can make an application for the consolidation of units, and the Register must ensure that the notification is endorsed on the original registered sectional plan and an indication on the diagram in the original registered sectional plan, illustrating the units being consolidated.  In cases where the units for consolidation are charged or otherwise encumbered, the applicants must produce consent of the charge or encumbrancer before the sectional plans for consolidation is registered.
7.		Incidental Rights of Owners of Common Property The Act provides that the common property and each unit has all rights od support, shelter, protection and for the passage and provision of water, sewerage, drainage, gas, electricity, garbage, air etc as may be necessary for the reasonable use of the common property or unit	Incidental Rights The Regulation on the other hand, goes ahead to provide for the consequence of the failure to uphold and protect the incidental rights and it provides that: - Where the subdivision or consolidation of units is likely to affect the rights of any unit owner in respect of common property and the rights provided under Section 7 of the Act, a sectional plan in that respect will not be registered.
		Conversion to Sectional Units The Act provides that where a building contains premises that are rented for commercial and commercial purposes and that are not included in a sectional plan, the owner of the premises cannot sell the premises as either residential or commercial units until they are included for such purposes in the sectional plan.	Conversion to Sectional Units The Regulation however provides for the circumstances under which conversions can be undertaken. The Regulation provides- A long-term lease can be converted to sectional units in accordance with the Regulations in the either of the following circumstances: - Where all units have been transferred to the respective owners and the reversionary interests has been transferred to the management company to hold in trust for the owners. Where all units have been transferred to the respective owners and the reversionary interest is by a written agreement intended to be transferred to the management company holding in trust. Where part of the units have been transferred to the respective owners and the reversionary interest is by written agreement intended to be transferred to the management company to hold in trust.
			Conversion The Regulation also goes ahead to provide for the procedure for the conversion and provides as follows: - A person applying for conversion under the Regulations shall accompany the application with the following documents: - The sectional plan. The sublease or long-term lease Certificate of lease. The parcel title or a copy of the parcel title. Where the management company or owners of the units applying for a conversion are not able to avail the original title to the parcel, which is not otherwise encumbered, the applicant must provide an indemnity in accordance with the Land Registration (General) Regulations, 2017. Further, the Registrar must call for the title for the purpose of conversion through a notice in the Gazette. After the expiry of sixty days from the date of the issuance of the notice above and the title is not produced to the Registrar, he/she must: - Register the sectional plan. Issue the respective unit owners with the certificate of title or lease  Close the parcel register.
			Preparation and approval of sectional plans without approved architectural plans During conversion initiated by the management company or owners and the approved architectural plans or the available approved architectural plan is at variance with the development- They must avail an affidavit detailing the inability to avail the document or its loss. The sectional plan may be prepared by the surveyor without necessarily relying on the approved architectural plan. The County government may endorse its certificate on the sectional plan without the production of the approved architectural plans.
		Termination of a Sectional Property The Act provides that the sectional status of a building may be terminated on the following grounds- Unanimous resolutions Substantial or total damage to the building  Compulsory acquisition	Termination of Sectional Status  The Regulations however goes ahead to provide for the process of effecting the termination on the grounds highlighted under the Act. The Regulation provides- Upon the termination of a sectional status, the corporation must file with the Registrar a notice of termination of the sectional status of a building in Form SP 21 set out in the First Schedule.  On receiving the notice, the Registrar must also issue a notice of thirty days in the Gazette before endorsing on the relevant sectional plan register a notification of the termination of the sectional status and vesting of the parcel to the owners.
	s.49	Transfer of Parcel The Act provides that the corporation may be directed to transfer a parcel or any part of it once the sectional status of a building is terminated.	Transfer of Parcel The Regulation on the other hand provides in detail on how the transfer of parcel will be done and it provides that- Where a corporation transfers a parcel, the Registrar must- Register a notification of the cancellation of the relevant sectional plan. Indicate on the register that the sectional plan has been cancelled.
		Internal Disputes Resolution Committee The Act provides that the corporation may establish an Internal Dispute Resolution Committee on a need basis to hear and determine disputes.	Internal Disputes Resolution Committee The Regulation however provides for how the Committee is to be constituted. It provides that- The Corporation must during their Annual General Meeting elect members who sit in this committee.
			Notification of Changes The Regulation provide that in the event that the corporation wants to make some changes they must undertake the following actions: Issue a notice to the Registrar in the event of change of- Address Board Membership Corporation The Registrar must thereafter amend the unit register and the corporation register.
			Execution of Instruments The regulation provides that for the verification and execution of the instruments the provisions under the Land Registration Act, sections 44 and 45, and the Land Registration Regulations, 2017 shall apply.
			Fees The Regulation provides that the fees payable for procedure shall be the fees payable prescribed under the Land Registration Act, 2012.
			Power of Attorney The power of attorney executed and verified under the Land Registration Act will be valid for the purposes of the Sectional Properties Act, 2020.