Executive Summary
The Defendant was a developer who after constructing 3 blocks of houses each containing 3 units, sold some units to the Plaintiff and other parties. He then proceeded to begin the construction of a 10th house on the roof of one of the blocks which the Plaintiff was opposed to, resulting in the filing of the suit.
The Plaintiff argued that as an owner of 3 houses in the compound, he is entitled to joint ownership and enjoyment of the shared areas and should thus have been consulted before construction. He also asserts that the defendant required an Impact Assessment Report and approvals from NEMA before proceeding with the new development. The defendant on his part insisted that having bought houses in Blocks A and C, the Plaintiff has no locus bringing a suit to oppose the construction of an additional unit in Block B where he does not own a unit. He further argued that having obtained an approval from the county government and being the sole owner of the land, he is entitled to pursue any development as he deems fit.
The Courts
The court agreed with the Plaintiff, stating that the initial construction of the units by the Developer was regulated by the Sectional Properties Act which governs the construction of apartment buildings and estates with shared spaces.
Justice Sila further opined that every unit owner within a sectional property was entitled to access and enjoyment of shared spaces including roof tops, parking lots, stairways, gates, walking paths etc. As a result, any alteration to these spaces or the whole of the property in a manner likely to affect its character that was not initially included in the proposed development plan at the purchase stage, requires the agreement of the individual unit owners. The court also concluded that all developments under the Sectional Properties Act require the relevant permits and approvals including one from the local government, from NEMA, as well as an Impact Assessment Report.
Conclusion
The case reinforced the need for errant developers/property owners to register their properties under the Sectional Properties Act to comply with current laws. Some developers deliberately ignore this requirement which helps them avoid responsibilities under the Sectional Properties Act like forming a Management Company.
The case also emphasized the need for all developers to provide their potential buyers with the proposed development map to help them make a decision on whether they are comfortable with current or future alterations. This is because some developments can affect their properties i.e developments may change/altar the view from their unit.
