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Transcript of Tenga, Ringo & Sist Joseph 'The Unit Titles Act Framework - Some General Considerations' Registrar...
THE UNIT TITLES FRAMEWORK IN TANZANIA:
GENERAL CONSIDERATIONS OF THE UNIT TITLES ACT, 2008 – CAP. 416[By R.W.Tenga & Sist Joseph,]A presentation to the REGISTRAR OF TITLES Officers’ Workshop, Ramada Inn, Dar Es Salaam, 15 March 2010
OVERVIEW0. DEFINITIONS1. BACKGROUND TO
CONDOMINIUM PROPERTY LAW
2. THE REFORM PROCESS
3. THE MORTGAGE FINANCING (SPECIAL PROVISIONS) ACT, 2008
4. THE UNIT TITLES ACT, 2008 : SCHEMATIC OVERVIEW
5. THE UNIT TITLES ACT, 2008: OVERVIEW OF PROVISIONS
6. REGULATIONS 7. BY – LAWS8. CONSEQUENTIAL
CONSIDERATIONS
2
0. Definitions
•Condominium▫“ownership of one dwelling unit within a
multi-dwelling building, with an undivided ownership interest in the land and other components of the building shared in common with other owners of the dwelling units in the building" . An individual sectional ownership extends inward from the interior walls, floors and ceilings. This definition illustrates a sectional property ownership under statutory law systems. [Masinde, MSc, 2006]
Definitions (Contn.)
•Condominium (Wikipedia)▫ A condominium, or condo for short, is a form of
housing tenure. It is the legal term used in the United States and in most provinces of Canada for a type of joint ownership of real property in which portions of the property are commonly owned and other portions are individually owned. In Australia and the Canadian province of British Columbia, the legal term for this is strata title. In Quebec, it is known as syndicates of co-ownership. In England and Wales the equivalent is commonhold . Other terms are like Sectional Titles, etc.
Definitions (Contn.)
•Condominium (Legal Consultant)▫ Divided co-ownership of real property occurs when certain
portions of a real property are owned by specific owners (hereinafter "co-owners") for their use alone and certain portions of the property are held in co-ownership by co-owners for their common use.
▫ Those portions of the property that are owned by a specific co-owner and that are for his use alone are called the units. Those portions of the property that are owned by all the co-owners and serve their common use are called the common areas. Some of the common areas may nevertheless serve the use of only one or several of the co-owners, and those are called common areas for restricted use. The rules regarding the common areas also apply to common areas for restricted use.
Definitions (Contn.)
•Condominium (Tracht, Hofstra LJ, 1999)▫ In a condominium development, each property owner has
an individual interest in a defined parcel of property, and shares in the ownership (typically as tenant-in-common) of various common spaces and facilities. Thus, in a typical multi-unit residential development, each owner owns an apartment unit plus a proportionate interest, with all of the other owners, in the common elements, such as hallways, lobby, elevators and recreational facilities.
▫ This hybrid form of ownership can be contrasted with a cooperative, in which a corporation owns the real property, with each shareholder in the corporation being entitled to a proprietary lease to a specific apartment.
1. Background to Condominium Property Law
1.1Development of Condominium Property in Tanzania
A. THE ENGLISH CONCEPTS OF PROPERTY_ The Common Law Paradigm
Reception Clauses 1st of January 1922 [Cap. 114 – Old], O-in-C 1920, JALO, &
JALA. Land Act Cap.113
Ad Coelum Rule‘cuius est solum eius usque ad coelum et ad
inferos’‘quicquid plantatur solo, solo cedit’
Whatever is affixed to the soil belongs to it. Whatever is affixed to the soil or the realty, thereby becomes a parcel.
Property as the ‘Res’, ‘Bundle of Entitlements’, etc.
Background to Condominium Property Law (Contn..)
1.1 Development of Condominium Property in TanzaniaB. HISTORY
R.W. James (1971) Condominium ‘Archetypes’ in Ismaili Communities Structures based on the Law of Associations
Scholastica Masinde ‘Establishment & Management of Sectional Properties in Dar Es Salaam” MSc Dissetation in Real Estate, UDSM, 2006
Private Sectional Property OwnersParastatal Sectional Owners (NHC, NSSF, PPF,
etc.]
Background to Condominium Property Law (Contn..)
1.1 Development of Condominium Property in TanzaniaC. LAND LAWS
LAND LAW ACT, CAP.113Section 22 - Incidences of the Granted Right of
OccupancyRequires GRO to adhere to Registration Statutes Co-Occupancy Provisions+No Reference to SUB-TITLES or CONDOMINIUM
TITLES LAND REGISTRATION ACT, CAP. 334*
Section 53 – No Transfer is registrable unless the division thereof is made vertically.
Background to Condominium Property Law (Contn..)
1.2 The Housing Question as viewed by GoT (Prf. Nnkya – Director of Housing)
A. Status: Majority of Tanzanians have no cash to buy or build a decent
home; from household income it takes 15 – 65 yrs to build a decent urban home in Tanzania. In Europe it takes 3 yrs.
Self-help housing in financing, supervision and construction often compromises quality.
Poor residential infrastructure Lack of social services in residential areas Improper location of residences in relation to places of work,
shopping and business
Background to Condominium Property Law (Contn..)
1.2 The Housing Question as viewed by GoT (Prf. Nnkya – Director of Housing)
B. Causes of the Urban Housing problem:
Poor Physical PlanningLegal Barriers (Types of Tenure, Planning Laws,
etc.)No long-term Housing FinanceNo real Estate developmentWeak ManagementPoverty generally.Urbanization [Muzzini et al ‘The Urban Transition
in Tz’ 2008]
Background to Condominium Property Law (Contn..)
1.3 The Need for Regulating Condominium Property & the Housing QuestionA. Facilitating Housing FinanceB. Catching Up With 'Archetypes‘C. Regulating StakeholdersD. Facilitating Urban Livelihoods
Prevention of URBAN SPRAWL Effective, Speedy & Efficient Exchange
of URBAN HOUSING Reduce Urban Mobility Expenses &
Costs
2. The Reform Process2.1 Second Generation Financial
Sector Reforms ProgramMajor objective to promote mortgage finance. Consultant study on the mortgage market
under the Bank of Tanzania, in relation to the Housing Question, suggests for the amendment the Land Act and enactment of a Condominium Law
An inter-institutional Task Force identifies the main bottlenecks as:
Long court procedures in lending casesRed tape in transfer of mortgage propertiesUnbalanced legislation that favors borrowers
2. The Reform Process – Cont….
2.2 PRE-REQUISITES FOR MORTGAGE FINANCE MARKET FACILITATIONAmendment of existing laws
The Land Act Amendment of the Land Registration Act Amendment of the Civil Procedure Act Amendment of the Magistrate Court Act
Enactment of Condominium LawEnactment of statutes on Estate Agents, Valuers
and Property Managers, etc.Administrative Actions
Housing department Education on mortgage finance Develop regulations on unit titles
2. The Reform Process – Cont….
2.3 DRAFT BILLS, BILLS & ENACTMENT OF MORTGAGE FINANCE LAW AND UNIT TITLES BILLDraft Bills discussed by stakeholders
Refining the Bills by the Ministry of Lands
Drafting the Bills by Attorney General
Discussion and enactment by Parliament
Assent by the President
2. The Reform Process – Cont….Objectives for Property Markets’ Legislative Schemes to promote and regulate the
efficient working of the property markets;
to encourage the efficient use of land;
to encourage developers to invest in property and avail property to the market;
to limit urban sprawl, reduce the cost of urban living and improve the environmental conditions in urban areas;
to enable Tanzanians, particularly women, to participate in the ownership of decent homes;
to promote the efficient working of the mortgage market and a vibrant housing finance system;
to enable property owners to utilize property to access facilities from financial institutions;
to develop property support services including estate agents, property, valuers, managers, architects, contractors, financiers and lawyers;
to establish an expeditious system of property acquisition and transfer;
to encourage the collection, storage and dissemination of reliable information about property markets, and
to establish an efficient framework for regulating and management of unit titles.
3. THE MORTGAGE FINANCING (SPECIAL PROVISIONS) ACT 2008
I. Preliminary provisions, (Ss. 1 – 2)
II. Amendment of the Land Act Cap.113 (Ss. 3 – 19)
III. Amendment of the Land Registration Act Cap. 334 (Ss. 20 – 21)
IV. Amendment of the Civil Procedure Act, Cap. 33 (Ss. 22 – 25).
17
4. THE UNIT TITLES ACT 2008: SCHEMATIC OVERVIEW
I. Preliminary provisions,
II. Creation and registration of units,
III. Proprietary rights and obligations of co-owners,
IV. Dispositions ,
V. Management of unit property,
VI.Dispute resolution and enforcement mechanism,
VII.Termination of the unit status, and,
VIII. General provisions.
18
Diagram No 1: Operation of the Unit Titles Act 2008
Financiers (financial institutions)
Developers (Real estate construction companies)
Intermediaries *Estates agents *Valuers *Lawyers *Architects *Town Planners
Clients (Potential tenants/buyers)
Unit Associations Managing committee Managing Agent
REGISTRAR
MORTGAGE FINANCING ACT 2008
UNIT TITLES ACT 2008
Unit owners
Common property
Unit
DIAGRAM 2: The UNIT TITLES ASSOCIATION – Relationships
DEVELOPER
Registrar of Titles
Financial Facilities
UNIT TITLES ASSOCIATION
Managing Agent
Unit Owners
Unit Property
Management Committee Common Property
5. THE UNIT TITLES ACT 2008: OVERVIEW OF PROVISIONS
I. Preliminary provisions,
II. Creation and registration of units,
III. Proprietary rights and obligations of co-owners,
IV. Dispositions ,
V. Management of unit property,
VI.Dispute resolution and enforcement mechanism,
VII.Termination of the unit status, and,
VIII. General provisions.
21
PART 1: PRELIMINARY PROVISIONS [SS 1 - 3 ]
22
PART II: CREATION & REGISTRATION OF UNITS [SS 4 - 18]
23
PART II: CREATION & REGISTRATION OF UNITS [SS 4 - 18] (2)
24
PART III: PROPRIETARY RIGHTS & OBLIGATIONS OF CO-OWNERS [SS 19 - 27]
25
PART IV: DISPOSITION [SS. 28 - 34]
26
PART V: MANAGEMENT OF THE UNIT PROPERTY [SS. 35 - 66]
27
PART V: MANAGEMENT OF THE UNIT PROPERTY [SS. 35 - 66] (2)
28
PART V: MANAGEMENT OF THE UNIT PROPERTY [SS. 35 - 66] (3)
29
PART V: MANAGEMENT OF THE UNIT PROPERTY [SS. 35 - 66] (4)
30
PART VI: DISPUTE RESOLUTION & ENFORCEMENT MECHANISM [SS 67 - 71]
31
PART VII: TERMINATION OF THE UNIT STATUS [SS 72 - 79]
32
PART VIII: GENERAL PROVISIONS [Ss 80 - 83]
33
SCHEDULE
•Although Reference is made to a Schedule there is none in the statute. It is possible to suggest that it may have referred to some By-Laws especially those regarding the facilitative and superintendence role of the Registrar.
34
6. REGULATIONS•Registration of
units•Application for
registration of units.
•Issuance of a certificate of a unit title
•Application for registration of sub- division and amalgamation
•Change of use of unit
• Unit plan to conform to certain requirements
• Certificates accompanying unit plans
• Registration and operation of associations.
• Qualifications of managing agents of associations.
• Fees, offenses and penalties
35
UNIT TITLE REGULATIONS FORMS (UTF) – 1st-13th Schedule to the UTR, 2009
Form No. Description of the form
Made under Regulation/Section
UTF NO. 1 (1ST SCHEDULE) P. 311-312
REGISTER OF UNIT (PLAN?)
REGULATIONS 3(3) AND 6(1)
UTF NO. 2 (2ND SCHEDULE) P. 313
NUMBERING OF THE UNIT PLAN
REGULATION 3(4)
UTF NO. 3 APPLICATION FOR REGISTRATION OF A UNIT PLAN
REGULATION 4(1)
UTF NO. 4 APPLICATION FOR REGISTRATION OF A UNIT
REGULATION 5 (3)
UTF NO. 5 CERTIFICATE OF TITLE (RIGHT OF OCCUPANCY)
REGULATION 6(2)
UTF NO. 6 APPLICATION FOR REGISTRATION OF SUBDIVISION/ AMALGAMATION
REGULATION 7(1)
UTF NO. 7 CERTIFICATE OF LOCAL GOVERNMENT AUTHORITY FOR SUBDIVISION/ AMALGAMATION
REGULATION 7(2)
UTF NO. 8 APPLICATION FOR CHANGE OF USE OF THE UNIT
REGULATION 8(1)
UNIT TITLE REGULATIONS FORMS (UTF) – 1st-13th Schedule to the UTR, 2009….(continued)
Form No. Description of the form
Made under Regulation/Section
UTF No. 9A Certificate of consent for change of use from association
Regulations 8(2)
UTF No. 9B Certificate of consent for change of use from local government Authority
Regulations 8(2)
UTF No. 10A A. Certificate of registered land surveyor
Regulations 10(2)
UTF No. 10B B. Certificate of a local government authority
Regulations 10(2)
UTF No. 11 Application for Registration of An Association
Regulations 13(7)
UTF No. 12 Certificate of Registration of An Association
Regulations 13(8)
7. BY –LAWS
PART I: ASSOCIATION OF UNIT OWNERS
PART II: INTERPRETATION Part III: MEMBERSHIP,
VOTING RIGHTS AND MEETINGS
PART IV: OPERATIONS & ADMINISTRATION OF THE ASSOCIATION
PART V: ENJOYMENT, USE & UPKEEP OF PRIVATE AND COMMON PROPERTY
PART VI: DISPOSITION PART VII: DISPUTE
SETTLEMENT PART VIII: GENERAL
PROVISIONS SCHEDULES
▫ FORMS▫ MODEL SALE
AGREEMENT▫ MODEL MANAGEMENT
AGREEMENT
38
UNIT ASSOCIATION FORMS (AF) – 16th Schedule to the UTR, 2009
Form No. Description of the form
Made under Regulation/Section
AF No. 1 Form of grant of easement and restrictive covenant by the association.
Section 26 of the Act
AF No. 2 Cancellation of an Easement
AF No. 3 Notice by Unit Owner of a Lease
Section 31(2)
AF No. 4 Notice of Termination of Lease by Unit Owner
Section 31(3)
AF No. 5 Notice of unit owners’ representative authorization
Section 38(2)
AF No. 6 Notice of change of authorization of Unit owners’ representative
Section 39(7)
AF No. 7 Notice of change of address of Unit owners’ representative
Section 38 (9)
AF No. 8 Notice of Company’s Representative Authorization
Section 39(2)
UNIT ASSOCIATION FORMS (AF) – 16th Schedule to the UTR, 2009….(continued)
Form No. Description of the form
Made under Regulation/Section
AF No. 9 Notice of Change of authorisation of Company’s representative
Section 39(6)
AF No. 10 Notice of Change of Address of Company’s representative
Section 39(7)
AF No. 11 Instrument Evidencing Transactions Affecting Common Property
Section 43 (1)
AF No. 12 Notice by chargee to the association
Section 44 (3)
AF No. 13 Notice by chargee to the association
Section 44 (3)
AF No. 14 Notice of association meetings to chargee
Section 44 (5)
AF No. 14A Notice of association meetings to Members
AF No. 15 Notice of appointment/ cessation of membership in management committee
Section 47 (2)
UNIT ASSOCIATION FORMS (AF) – 16th Schedule to the UTR, 2009….(continued)
Form No. Description of the form
Made under Regulation/Section
AF15A Notice of Proxy Section 44(7)
AF No. 16 Notice of amendment/revocation of by-laws of association
Section 50 (3)
AF No. 17 Association Register Section 51 (1) - (4)
AF No. 18 Notice of unit owner to the association providing information for inclusion in the Association’s Register
Section 52 (1)
AF No. 19 Notice of a Person other than a Unit owner to the Association providing information for inclusion in the Association Register
Section 52(3)
AF No. 20 Request for access to the Association’s Register
Section 53 (1)
AF No. 21 (18th Schedule) Certificate of association for grant of Easement/Restrictive Covenant/Transfer or Sale of Common Property on Termination
Regulation 17(4)
AF No. 22 Notice of Termination of Unit Status
Section 17 (5)
8. Consequential considerations
THE REGISTRAR’S OVERSIGHT
TRANSFORMATION OF THE PRESENT TITLES – ESP. CONDOMINIUM ‘ARCHETYPES’.
SELLING THE REGULATORY SCHEME
THE LACK OF REGULATION OF ‘MARKET FACILITATORS’ – THE REAL PROPERTY PROFESSIONALS
THE LAWYER’S TOOLKIT THE LAW
LAND ACT CAP. 113 LAND REGISTRATION ACT,
CAP. 334 PLANNING LAWS & LOCAL
GOVEVERNMENT COMMERCIAL LAW
SKILLS CONVEYANCING &
DRAFTING SKILLS NEGOTIATION SKILLS DISPUTE PROCESSING MANAGEMENT SKILLS LEADERSHIP SKILLS &
WORKING WITH TEAMS
42
THANK YOU FOR YOUR ATTENTION!