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!