The concept of sectional titles in Kenya was crafted in the 1980s following concerted efforts by the Law Society of Kenya, the Land Review Commission, and the Ministry of Lands and Settlement to introduce titled ownership for flats, apartments, and townhouses which were becoming increasingly predominant in the country.
This push culminated in the enactment of the Sectional Properties Act, 1987 (the SPA, 1987) and the Sectional Properties Regulations.
Although these legal developments ushered in a new era of sectional units, a challenge subsisted in the rollout of sectional titles in the country as most legal practitioners embraced ownership of units through sub-leases as an alternative to sectional titles.
Upon promulgation of the Constitution in 2010, the need for uniformity of property holding was appreciated. Consequently, in the spirit of Article 68 of the Constitution, the Sectional Properties Act No. 21 of 2020 (the “Act”) was introduced with the aim of simplifying the process of registering titles for apartments, townhouses, and office units among others.
Unlike its 1987 predecessor, the SPA 2020 extends to all forms of ownership of land and head titles, with the intention to replace all subleases with sectional titles.
In 2021, new Sectional Properties Regulations were gazetted to facilitate implementation of the SPA, 2020, and outline the procedure for registration of sectional plans and conversion of long-term leases registered under the Land Registration Act, no. 3 of 2012 (LRA) to sectional titles, among others.
The Act provides 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.
a) Sectional titles exist independent of the mother title .
This is unlike sub-leases which are borne from the mother title and do not exist independent of the mother title.
Homeowners holding sub-leases are dependent on the developer or the management company as their consent is required when sub-leasing or charging the property. Under the sectional regime, investors and homeowners hold sectional titles to individual units.
Consequently, unit owners can easily secure financing by charging the units in favour of the lenders without requiring the consent of the developer and/or the management company.
b) Simplification of the registration process.
Individual sectional titles are transferred in the typical way that land is transferred. Cumbersome lease documents will no longer be required.
c) It is less costly.
Purchase of sectional units may be less costly since the purchaser will not be required to incur costs for the transfer of reversionary interests, allotment of shares, and issuance of share certificates.
d) Sectional developments are regulated thus offering protection to homeowners.
The comprehensive provisions of the Act as well as the by-laws of the management corporation regulate sectional units.
Freehold titles and leases of over twenty-one (21) years can be converted to sectional titles.
Section 54(5) of the Land Registration Act, 2012 empowers land registrars to register long-term leases and issue certificates of lease over apartments, flats, maisonettes, townhouses, or offices having the effect of conferring ownership if the property comprised is properly geo-referenced and approved by the statutory body responsible for the survey of the land.