Sectional Properties Act, 2020

The Sectional Properties Act, 2020 is not new. It repeals the Sectional Properties Act of 1987. The objective remains to provide for the division of buildings into units to be owned by individual proprietors. The common space, to be managed through a corporation established under the Act, is owned by the unit owners in proportionate shares as tenants in common. Sectional titles, referred to as strata or condominium titles in some jurisdictions, helps nations to confer distinct rights to owners of units or flats in multi-level developments. Such vertical development optimizes on available land, and facilitates real estate ownership by more people. It’s therefore good for high land value and high population density jurisdictions. It will support Kenya’s affordable housing scheme.

Changes from 1987 Act

Though largely similar to the previous, the 2020 law introduces some few substantive changes. It aligns the framework to the current constitution and the new land laws. For instance, references to local authorities as approving entities, and the repealed Registered Land Act on which the 1987 Act pegged registration, have been changed. Approvals are now to be done by county governments, and registration will be effected under the Land Registration Act, 2012. In the past, since we had multiple registration laws, titles had to be converted to the Registered Land Act for a property to enjoy the benefits of sectional titles. Registration of all titles in Kenya is currently done under the Land Registration Act. Therefore, no conversions of title will be necessary, which reduces transaction time and costs.

Sectional plans can be registered against a freehold title or leasehold title. The old law provided that that the unexpired leasehold term of the title had to be 45 years or more for sectional plans to be registrable. The new law changes this to 21 years which opens room for many more parcels to qualify under this concept, and many more people to enjoy its benefits.

Previous long-term leases on apartments to be reviewed

The Sectional Properties Act 2020 further requires that all sectional plans submitted for registration by the land registrar be georeferenced, and be signed by the authority responsible for survey, currently the Director of Survey. There are some long term leases which had been registered for purposes of conferring ownership to apartments, flats, maisonettes, town houses or offices before the commencement of the Act. The new law provides that these will need to be reviewed within two years from its commencement so as to conform to the georeferencing provisions of the Land Registration Act. After the two years, the registrar will slap restrictions to prevent further dealings on non-compliant parcels.

Need for institutional capacity and goodwill

The implementation process will require approval of building plans by County governments, sectional plans by Survey of Kenya and registration of titles in land registries. Experience shows that lack of, or inadequate technical capacity to expedite submissions and ensure quality in these institutions, undermined the success of the 1987 law. Let’s therefore learn lessons and ensure there’s adequate institutional capacity and goodwill to operationalize the new one. It is also expected that new regulations to support the implementation of the2020 law will be developed and enacted at an early moment.

Dated: 5^th February, 2021