THE UNIT TITLES FRAMEWORK IN TANZANIA

:
GENERAL CONSIDERATIONS OF THE UNIT TITLES ACT, 2008 ± CAP. 416

2

OVERVIEW
0.

1.

2. 3.

4.

DEFINITIONS BACKGROUND TO CONDOMINIUM PROPERTY LAW THE REFORM PROCESS THE MORTGAGE FINANCING (SPECIAL PROVISIONS) ACT, 2008 THE UNIT TITLES ACT, 2008 : SCHEMATIC OVERVIEW

5. THE UNIT TITLES ACT, 2008: OVERVIEW OF PROVISIONS 6. REGULATIONS 7. BY ± LAWS 8. CONSEQUENTIAL CONSIDERATIONS

0. Definitions
‡ Condominium
³ownership of one dwelling unit within a multidwelling 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 "coowners") 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 coowners, 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
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

1.1 Development of Condominium Property in Tanzania 

Ad Coelum Rule µcuius est solum eius usque ad coelum et ad inferos¶ µquicquid 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 µRes¶, µBundle of Entitlements¶, etc.

Background to Condominium Property Law (Contn..)
1.1 Development of Condominium Property in Tanzania 
R.W. James (1971)
Condominium µArchetypes¶ in Ismaili Communities Structures based on the Law of Associations

B. HISTORY 

Scholastica Masinde µEstablishment & Management of Sectional Properties in Dar Es Salaam´ MSc Dissetation in Real Estate, UDSM, 2006
Private Sectional Property Owners Parastatal Sectional Owners (NHC, NSSF, PPF, etc.]

Background to Condominium Property Law (Contn..)
1.1 Development of Condominium Property in Tanzania 
LAND LAW ACT, CAP.113
Section 22 - Incidences of the Granted Right of Occupancy Requires GRO to adhere to Registration Statutes Co-Occupancy Provisions+ No Reference to SUB-TITLES or CONDOMINIUM TITLES

C. LAND LAWS 

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 ² 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 Planning Legal Barriers (Types of Tenure, Planning Laws, etc.) No long-term Housing Finance No real Estate development Weak Management Poverty 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 Question
A. B. C. D. Facilitating Housing Finance Catching Up With 'Archetypesµ Regulating Stakeholders Facilitating Urban Livelihoods 

Prevention of URBAN SPRAWL  Effective, Speedy & Efficient Exchange of URBAN HOUSING  Reduce Urban Mobility Expenses & Costs

2. The Reform Process
2.1 Second Generation Financial Sector Reforms Program 
Major 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 cases Red tape in transfer of mortgage properties Unbalanced legislation that favors borrowers

2. The Reform Process ² Cont«.
2.2PRE-REQUISITES FOR MORTGAGE FINANCE MARKET FACILITATION 
Amendment 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 Law  Enactment 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 ² Cont«.
2.3DRAFT BILLS, BILLS & ENACTMENT OF MORTGAGE FINANCE LAW AND UNIT TITLES BILL 

Draft 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 ² 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.

17

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).

18

4.

THE UNIT TITLES ACT 2008: SCHEMATIC OVERVIEW
I. Preliminary provisions, II. Creation registration units, and of V. Management of unit property, VI. Dispute resolution and enforcement mechanism, VII.Termination of the unit status, and, VIII. General provisions.

III. Proprietary rights and obligations of co-owners, IV. Dispositions ,

Diagram No 1: Operation of the Unit Titles Act 2008

Financiers (financial institutions)

Clients (Potential tenants/buyers)

MORTGAGE FINANCING ACT 2008

Unit Associations Managing committee
Unit owners Unit Common property

Developers (Real estate construction companies)

Intermediaries *Estates agents *Valuers *Lawyers *Architects *Town Planners

UNIT TITLES ACT 2008

REGISTRAR

DIAGRAM 2: The UNIT TITLES ASSOCIATION ² Relationships
Registrar of Titles

Financial Facilities

DEVELOPER

UNIT TITLES ASSOCIATION

Unit Property

Common Property

Management Committee

Managing Agent

Unit Owners

21

5.

THE UNIT TITLES ACT 2008: OVERVIEW OF PROVISIONS
I. Preliminary provisions, II. Creation registration units, and of V. Management of unit property, VI. Dispute resolution and enforcement mechanism, VII.Termination of the unit status, and, VIII. General provisions.

III. Proprietary rights and obligations of co-owners, IV. Dispositions ,

22

PART 1: PRELIMINARY PROVISIONS [SS 1 - 3 ]

1. Short Title & Announcemen t

2. Application

3. Interpretation

23

PART II: CREATION & REGISTRATION OF UNITS [SS 4 - 18]
4. Creation of Units 5. Description of Unit Property
6. Fractional Shares

7. Procurement of Planning Consent

8. Registration of Units

9. Entering of Separate Units in the Register

10. Common Property

11. Recording of Units & Issuance of Certificate of Title

12. Subdivision of Units

13. Change of Use of Units

24

PART II: CREATION & REGISTRATION OF UNITS [SS 4 - 18] (2)

14. Unit Plan to conform to Conform to Certain Requirements

15. Unit Plan to be accompanied by Certificates

16. Boundaries of Units

17. Conversion of Premises to Units

18. Copies of Unit Plan for Assessing Taxes, Rates, Etc.

25

PART III: PROPRIETARY RIGHTS & OBLIGATIONS OF CO-OWNERS [SS 19 - 27]
19. By-Laws

20. Rights & Obligations of Co-Owners 21. Incidental Rights of owners of Common Property 22. Easements in favor of Unit Owner

23. Implied Easements in Favor of Unit Owner

24. Exclusive Use of Areas

25. Covenants benefiting Common Property

26. Procedure for granting restrictive Covenant

27. Liability of Unit Owner

26

PART IV: DISPOSITION [SS. 28 - 34]
28. Disposition 29. Sale of units by a Developer 30. Sale by Unit Owner or Chargee 31. Lease of Units by Owner 32. Inheritance 33. Mortgage 34. Protection of Mortgagee

27

PART V: MANAGEMENT OF THE UNIT PROPERTY [SS. 35 - 66]
35. Establishment of an Association

36. Legal status of an Association 37. Developer to Provide Documents to the Association 38. Representation of Members of the Association 39. Company-Owned Units and Authorization of Representatives 40. Functions of the Association 41. Management & Investment of Moneys of the Association 42. Dealings affecting Common Property

28

PART V: MANAGEMENT OF THE UNIT PROPERTY [SS. 35 - 66] (2)
43. Registration of Transfers of Common Property

44. Voting Rights

45. Voting where an Owner of Unit is Incapable

46. Meetings of the Association

47. Formation of management Committee

48. Annual General Meeting

49. Appointment of Managing agent

50. By-Laws of the Association

51. Establishment of the Association Register 52. Information for Inclusion in the Association Register

29

PART V: MANAGEMENT OF THE UNIT PROPERTY [SS. 35 - 66] (3)
53. Access to the Association Register 54. Disclosure of Information 55. Service of Documents 56. Change of Address for Service 57. Borrowing Powers 58. General Funds 59. Contributions to General Funds 60. Sinking Funds 61. Annual Payments in the Sinking Funds 62. Discounts & Interests on Amounts Owing

30

PART V: MANAGEMENT OF THE UNIT PROPERTY [SS. 35 - 66] (4)
63. Recovery of Amounts owing 64. Liability of coOwners 65. Habitual Offenders 66. Offences & Penalties

31

PART VI: DISPUTE RESOLUTION& ENFORCEMENT MECHANISM [SS 67 - 71]
67. Dispute Resolutions 68. Suits for & Against the association 69. Mediation

70. Litigation 71. Appointment of Administrator

32

PART VII: TERMINATION OF THE UNIT STATUS [SS 72 - 79]
72. Application to terminate Unit status 73. Dissolution of the Association

74. Application for disposition of assets

75. Notice of termination of the Unit status.

76. Transfer of parts of common property.

77. New plan required.

78. Registration of transfers.

79. Winding-up order.

33

PART VIII: GENERAL PROVISIONS [Ss 80 - 83]
80. Taxes, rates, charges, etc. 81. Insurance of Common Property. 82. Transformation of existing houses

83. Regulations.
(a) registrati on of properti es under this Act;
(b) manner under which the Associatio n may operate; (c) managem ent structure of less than five owners of a Unit;

d) properti es to be insured under this Act;

(e) matters relating to taxation of properties under this Act;

(f) rates to be charged under this Act;

(g) procedure s to be followed by an owner on terminatio n of insurance

(h) offences and penalties under this Act;

(i) contribut ion by owners on mainten ance of common property ;

(j) common properti es which can be transfera ble;

(k) qualificati on of a person to be appointed as a Managing Agent

(l) anything which may be prescribed under this Act for purposes of giving effect the provisions of this Act

34

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.

35

6. REGULATIONS
‡ Registration of units ‡ Application for registration of units. ‡ Issuance of a certificate of a unit title ‡ Application for registration of subdivision 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

UNIT TITLE REGULATIONS FORMS (UTF) ² 1st-13th Schedule to the UTR, 2009
Form No. UTF NO. 1 (1ST SCHEDULE) P. 311-312 UTF NO. 2 (2ND SCHEDULE) P. 313 UTF NO. 3 Description of the form REGISTER OF UNIT (PLAN?) NUMBERING OF THE UNIT PLAN APPLICATION FOR REGISTRATION OF A UNIT PLAN APPLICATION FOR REGISTRATION OF A UNIT CERTIFICATE OF TITLE (RIGHT OF OCCUPANCY) APPLICATION FOR REGISTRATION OF SUBDIVISION/ AMALGAMATION CERTIFICATE OF LOCAL GOVERNMENT AUTHORITY FOR SUBDIVISION/ AMALGAMATION APPLICATION FOR CHANGE OF USE OF THE UNIT Made under Regulation/Section REGULATIONS 3(3) AND 6(1) REGULATION 3(4) REGULATION 4(1)

UTF NO. 4 UTF NO. 5 UTF NO. 6

REGULATION 5 (3) REGULATION 6(2) REGULATION 7(1)

UTF NO. 7

REGULATION 7(2)

UTF NO. 8

REGULATION 8(1)

UNIT TITLE REGULATIONS FORMS (UTF) ² 1st-13th Schedule to the UTR, 2009«.(continued)
Form No. UTF No. 9A Description of the form Certificate of consent for change of use from association Certificate of consent for change of use from local government Authority A. Certificate of registered land surveyor B. Certificate of a local government authority Application for Registration of An Association Made under Regulation/Section Regulations 8(2)

UTF No. 9B

Regulations 8(2)

UTF No. 10A

Regulations 10(2)

UTF No. 10B

Regulations 10(2)

UTF No. 11

Regulations 13(7)

UTF No. 12

Certificate of Registration of An Regulations 13(8) Association

38

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

UNIT ASSOCIATION FORMS (AF) ² 16th Schedule to the UTR, 2009
Form No.
AF No. 1

Description of the form
Form of grant of easement and restrictive covenant by the association. Cancellation of an Easement Notice by Unit Owner of a Lease Notice of Termination of Lease by Unit Owner Notice of unit owners representative authorization Notice of change of authorization of Unit owners representative Notice of change of address of Unit owners representative Notice of Company s Representative Authorization

Made under Regulation/Section
Section 26 of the Act

AF No. 2 AF No. 3 AF No. 4 AF No. 5 AF No. 6

Section 31(2) Section 31(3) Section 38(2) Section 39(7)

AF No. 7 AF No. 8

Section 38 (9) Section 39(2)

UNIT ASSOCIATION FORMS (AF) ² 16th Schedule to the UTR, 2009«.(continued)
Form No. AF No. 9 Description of the form Notice of Change of authorisation of Company s representative Notice of Change of Address of Company s representative Instrument Evidencing Transactions Affecting Common Property Notice by chargee to the association Notice by chargee to the association Notice of association meetings to chargee Notice of association meetings to Members Notice of appointment/ cessation of membership in management committee Made under Regulation/Section Section 39(6)

AF No. 10

Section 39(7)

AF No. 11

Section 43 (1)

AF No. 12 AF No. 13 AF No. 14 AF No. 14A AF No. 15

Section 44 (3) Section 44 (3) Section 44 (5)

Section 47 (2)

UNIT ASSOCIATION FORMS (AF) ² 16th Schedule to the UTR, 2009«.(continued)
Form No.
AF15A AF No. 16 AF No. 17 AF No. 18

Description of the form
Notice of Proxy Notice of amendment/revocation of by-laws of association Association Register Notice of unit owner to the association providing information for inclusion in the Association s Register Notice of a Person other than a Unit owner to the Association providing information for inclusion in the Association Register Request for access to the Association s Register Certificate of association for grant of Easement/Restrictive Covenant/Transfer or Sale of Common Property on Termination Notice of Termination of Unit Status

Made under Regulation/Section
Section 44(7) Section 50 (3) Section 51 (1) - (4) Section 52 (1)

AF No. 19

Section 52(3)

AF No. 20 AF No. 21 (18th Schedule)

Section 53 (1) Regulation 17(4)

AF No. 22

Section 17 (5)

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8. Consequential considerations 
THE REGISTRAR¶S OVERSIGHT  TRANSFORMATION OF THE PRESENT TITLES ± ESP. CONDOMINIUM µARCHETYPES¶.  SELLING THE REGULATORY SCHEME  THE LACK OF REGULATION OF µMARKET 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

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