Sectional property in Kenya: what you need, and what the surveyor does

This note is for due diligence. It is not legal advice, and it is not a promise to certify a scheme we have not seen. Instruct an advocate for the register, the corporation and the conversion instruments. Instruct a licensed surveyor for the sectional plan. The county approves the building and the illustrated division. The Registrar issues the unit titles.

A buyer of a flat often holds a long sub-lease, a share certificate, or a seller’s floor number. That is not a unit on its own register. The Sectional Properties Act, 2020 exists so that a building can be divided into units owned by individual proprietors, with the rest of the parcel held as common property by those proprietors as tenants in common. The surveyor’s job is to produce the sectional plan that the register can embody. The client’s quest is a title (or lease) for the unit, with its share of the common property noted — something that can be sold, charged and rated on its own.

What the client is actually asking for

The clients are not all the same person, but they want the same legal result.

• A developer who has built (or is completing) apartments, maisonettes, townhouses or offices, and needs each unit to stand on its own title so buyers and banks can complete.
• A management company or unit owner sitting on a long-term sub-lease that was meant to confer ownership, and that the Act required to be reviewed to conform to the Land Registration Act, section 54(5). The developer, the management company or an owner may initiate that conversion.
• An advocate for a buyer, a chargee or an owners’ corporation, who needs a plan and certificates that can sit in a conveyancing or conversion file — not a pretty drawing of floors.
• A managing agent who needs the common property and exclusive-use areas defined so rates, repairs and by-laws have a map.

On registration of the sectional plan the Registrar closes the mother-parcel register, opens a register for each unit, and issues a certificate of title or of lease that includes the unit’s proportionate share in the common property (Sectional Properties Act, section 5; Land Act — registration completes the dealing). Common property is held in shares proportional to the unit factors on the plan (section 6). That is the quest. A share in a management company is not it. A floor plan from the architect is not it.

What the client must have — before the surveyor can start

The Act is stricter than practice sometimes pretends.

1. An existing structure. Section 4 is about designating or dividing a building that is there, from a building plan already approved by the county. You do not sectionalise empty air on a sketch. If the building is not up, this is not yet a sectional job. It may still be a cadastral or topo job for the land.
2. Proof of ownership of the parcel (or unit). Section 4(2): a surveyor shall not prepare a sectional plan unless presented with proof of ownership of the parcel or unit to which the plan shall apply. The official search and the mother title or lease are the advocate’s first papers and the surveyor’s gate.
3. The approved building / architectural plans, and the permits that went with them. The sectional plan is prepared from those approved plans, then checked against the structure. The county later endorses that the illustrated division conforms (section 11). If the plans and the building disagree, that is the first finding — not something to draw around.
4. A mother parcel that can carry the building. The surveyor must be able to certify that the structure lies within the external surface boundaries of the parcel, and that if gutters project, an easement exists (section 11(1)(a)). If the parcel itself is still on approximate general boundaries, or the building sits over the line, that is a cadastral problem first. See mutation versus cadastral plan and where the boundary is. Do not ask for unit titles on land you have not placed.
5. The list of unit owners and the corporation papers — for the advocate and the Registrar. The plan is accompanied by an application to register the corporation and a list of owners (section 4(3); Sectional Properties Regulations, regulation 9). The surveyor does not incorporate the company. The advocate does that work against the plan.

The Land Registration (General) Regulations, 2017 already treat sectional units as a special property section (section plan number, approximate floor area). The Sectional Properties Regulations (Legal Notice 236 of 2021) then prescribe the sheets, endorsements and forms. Registration of the plan is applied for under the Land Registration Regulations (Form LRA 9), with the original title or lease of the parcel.

Common law and ordinary sense: occupation of a corridor, a parking bay or a rooftank room is not “your unit” because you have always used it. Unless the plan gives exclusive possession, it is common property. Do not fight the neighbour with a tape before the plan exists.

How the surveyor supports that quest

The licensed surveyor is the person the Act names to prepare the plan. Under the Survey Act that surveyor remains responsible for the correctness of the work. The Sectional Properties Regulations say how the plan is drawn, what the site sheet must show, and that it is submitted to the authority responsible for survey for authentication — the same Director-of-Surveys gate as other cadastral work. No land (and no sectional plan) is deemed surveyed until that authentication.

In support of the client, the surveyor:

• reads the search, the mother cadastral picture and the approved building plans, and says whether a sectional plan can honestly be started — or whether the parcel, the building or the approvals are not ready;
• measures the existing structure against those plans and against the parcel;
• prepares a geo-referenced sectional plan (section 9): heading, title particulars, drawings that distinguish the units, approximate floor area of each unit, unit-factor schedule (the regulations require the factors to total 10,000), user of each unit, address for service on the Corporation, proprietor’s signature;
• prepares the site and building location plan to Survey Regulation standards: abutting boundaries, beacon coordinates, lengths and bearings of the parcel, geo-referenced external limits of the building, dimensions, tie lines from building to parcel boundary, easements and rights of way, exclusive-possession areas and the extent of common property (regulation 8);
• prepares the floor-plan sheets that illustrate the units;
• endorses, with licence number, that the structure is within the parcel (and the easement point if it applies), and that the units shown correlate with the existing structure (section 11(1)(a) and (3));
• applies, in the prescribed form, for the county’s endorsement that the illustrated division is approved (section 11(1)(b); regulation 3 — CECM responsible for approval of buildings);
• where rent must be apportioned, the land administration officer’s confirmation travels with the first sheet (regulation 3) — that is land-admin work the survey supports, not a substitute for it;
• lodges the plan for authentication. After that, the advocate and the Registrar close the mother register, open the unit registers, and issue the certificates.

The surveyor does not grant development permission. The surveyor does not issue unit titles. The surveyor does not run the Corporation. The surveyor does not promise that a long-term lease will convert before the plan exists and the Registrar acts.

This is not a subdivision of the land

Section 11(5) is the sentence that stops people commissioning the wrong product. The provisions of PLUPA and other land-use planning laws relating to the subdivision of land do not apply to the division of a building under a sectional plan if the surface boundaries of the parcel correspond to the PLUPA parcel and the building contains two or more units. You are not mutating a shamba and you are not cutting a municipal plot into new land parcels. You are dividing a building on a parcel that is already the parcel.

The building still had to be approved as development: PLUPA sections 57 to 59 (permission; plans by qualified, registered and licensed professionals) and the 2021 regulations. That approval is in the past of a proper scheme. The sectional endorsement is the county saying the division of the structure as illustrated is approved. Do not confuse the two, and do not skip either.

Conversion of old long-term leases

Section 13 is why so many advocates and managing agents are now in this file. Long-term sub-leases that were intended to confer ownership of an apartment, flat, maisonette, townhouse or office, registered before the Act, were to be reviewed to conform to the Land Registration Act. A developer, a management company or a unit owner may start that conversion. The Registrar may dispense with production of the original mother title if the developer will not surrender it, and may register a restriction on the mother parcel if conversion is not done.

The regulations provide the conversion path, including cases where the original approved architectural plans are incomplete. That does not license a guess. It means we assess the building, the available plans, and the mother parcel — then say what can be certified. Stamp duty already paid on a sub-lease is not paid again on that revision (section 13(3)). That is the advocate’s point, not a survey fee.

Until the sectional plan is registered, section 13(1) also stops the owner selling rented premises “as a unit.” Rational thought: do not complete a purchase of a floor as if it were already a sectional title when the mother register is still the only register.

What to send us

1. Official search and a copy of the mother title or lease.
2. Approved building / architectural plans and the county permits you have (construction, occupation if issued).
3. What you are trying to achieve: first registration of a new scheme, conversion of existing long-term leases, or a unit that must be subdivided or consolidated later (section 12 — a further sectional plan, with county approval).
4. A list of units and, if conversion, who already “owns” what on the ground.

We will tell you whether the parcel, the building and the approvals will support a sectional plan, and what the survey must produce. We will not certify a scheme we have not seen.

Related: buying land · subdividing land · topographic survey · setting out · surveyor in Thika.