Sectional Properties Act Kenya: Guide to Sub-Lease Title Conversion

1. Introduction: The Historic Transition from Sub-Leases to Sectional Titles

For decades, purchasing an apartment in Nairobi or Mombasa involved acquiring a long-term sub-lease, typically for 99 years or 999 years, granted by a developer or corporate entity that held the underlying head title. Under that historic arrangement, buyers did not own an independent parcel of land. Instead, they received a sub-lease document and a single share in a management company that theoretically controlled common areas such as parking basements, stairwells, swimming pools, and access gates.

This outdated structure created substantial legal friction across Kenya property market. Unscrupulous developers frequently retained the mother title, encumbered land with secondary bank charges without apartment owners knowledge, or failed to surrender reversionary interests. In response, the Government of Kenya enacted the Sectional Properties Act, No. 21 of 2020, repealing the 1987 statute and bringing apartment ownership into strict alignment with the Constitution of Kenya 2010 and the Land Registration Act 2012.

2. Core Tenets of the Sectional Properties Act 2020

The 2020 Act introduces three transformative legal mechanisms that every property buyer, homeowner, and conveyancing advocate in Kenya must understand:

• Individual Statutory Ownership: Each apartment, penthouse, or office suite is registered as a distinct unit with its own Certificate of Sectional Title (if freehold) or Certificate of Sectional Lease (if leasehold), complete with a unique cadastral identification number.
• Undivided Share in Common Property: Unit owners automatically hold an undivided share in the common property as tenants in common, in proportions determined by the unit factor specified on the registered sectional plan.
• Automatic Corporation Formation: The registration of a sectional plan automatically creates a Corporation under Section 17 of the Act. The Corporation operates with statutory powers, eliminating reliance on private Companies Act corporate vehicles that were vulnerable to annual return defaults.

3. The Step-by-Step Conversion Roadmap for Existing Apartments

Under Legal Notice No. 170 of 2021, all long-term sub-leases registered under repealed land registration statutes must be converted to sectional titles. The conversion protocol follows five distinct phases:

• Phase 1: Cadastral Survey and Sectional Plan Preparation. A licensed surveyor inspects the building and prepares a geo-referenced sectional plan delineating each individual unit boundaries and common facilities.
• Phase 2: Local Authority and Survey Approval. The plan is submitted to the County Government and the Director of Surveys for verification and cadastral number assignment.
• Phase 3: Sectional Plan Submission and Registry Lodgment. For properties registered at the Nairobi Land Registry, the registered sectional plan is submitted digitally via the Ministry of Lands Ardhisasa platform, accompanied by the mother title deed and original sub-leases. For properties registered at coastal or regional registries where Ardhisasa rollout is currently in phased transition, lodgment continues through the relevant physical Land Registry office following official Ministry guidelines.
• Phase 4: Cancellation of Mother Title and Sub-Leases. The Land Registrar closes the mother title register and cancels existing sub-lease registers, issuing a new sectional register for each unit.
• Phase 5: Issuance of Individual Certificates. Individual Certificate of Sectional Title or Certificate of Sectional Lease is issued to each unit owner, reflecting clean, encumbrance-free ownership.

4. Governance, Service Charges, and Common Property Management

Under Section 17 through 25 of the 2020 Act, the Corporation consists of all registered unit owners. The Corporation is not governed by the Companies Act, meaning it cannot be struck off the register for failing to file company annual returns. Key statutory duties include:

• Insuring the building structure against fire, tempest, and earthquake risks to replacement value.
• Establishing and maintaining both an administrative fund for operational maintenance and a mandatory reserve/sinking fund for long-term capital replacements (elevators, generators, borehole pumps).
• Enforcing standardized statutory by-laws governing noise, pet ownership, short-term occupancy, and structural modifications.

5. Crucial Buyer Due Diligence When Purchasing Off-Plan Units

When buying an off-plan property in Nairobi, Westlands, or Kilimani, buyers must verify that the developer has submitted architectural drawings conforming to Sectional Properties regulations. Specifically, the agreement of sale should explicitly state that the developer is bound to complete cadastral surveying and registration of the sectional plan prior to or concurrently with unit handover.

6. Legal Disclaimer

This guide is prepared for informational and educational purposes only and does not constitute formal legal counsel. Property buyers and unit owners are strongly advised to engage an independent conveyancing advocate registered with the Law Society of Kenya (LSK) to conduct search inquiries and handle individual title registration.