Yes, residents associations can stop developers from constructing commercial facilities

We are five apartment owners living in the residential units we bought three years ago in Nairobi. We lived in peace until two months ago when the seller - who owns the land on which the apartment sits - started constructing commercial facilities such as a pub, barbershop and six stalls for hire. We feel the new constructions will interfere with our peace and increase human traffic from residents from the adjoining apartments which may be a security risk. Can we go to court and stop the construction to enable us enjoy the peace that made us buy the apartments?

Lisa, Nairobi

It is possible to seek legal redress in court to stop the landowner from completing the constructions, especially if consent was not sought from apartment and sub-lease owners. Many sale agreements for apartments have provisions that either control or restrict further developments, which should be after consultation with owners, in the spirit of the Sectional Properties Act.

The Environment and Land Court also recently ruled that property developers cannot build additional units above existing blocks without the consent of purchasers who are owners of sub-leases.

Justice Silas Munyao ruled that Ahmed Jan Mohamed would not build additional units atop an apartment where the plaintiff (Khalid Rehman) bought three units. Rehman had moved to court to stop the construction as the issue of the additional units was not contemplated when the existing units were sold.

Rehman, who moved to the Environment and Land Court through lawyer Gikandi Ngibuini, argued that anything done on the property that has an effect of changing or interfering with its image must be done with the approval and consent of all apartment owners.

The judge said embarking on a development that the purchasers did not contemplate goes against the Sectional Properties Act and would be allowing a developer to cheat purchasers.

Justice Munyao further said that the approval for the development of the additional unit by the County Government of Mombasa went against the Physical Planning Act, then in operation, which required the application for the development plan to be served on interested parties.

The Sectional Properties Act, 2020 provides for the division of highrise buildings into units to be legally owned by buyers and common property as tenants in common. Common areas that are shared are swimming pools, parking lots, elevators and playgrounds.

The new law has several privileges, including giving apartment owners greater transaction ability in financing and disposal of properties. The independent and complete ownership also gives banks greater incentive to lend to apartment owners since charges can be placed directly on individual titles.

Legally, an apartment owner shall only be liable in respect of an interest endorsed on the sectional plan in proportion to the unit factor for his unit.

- The writer is an advocate of the High Court.