The enactment of Kenya’s Sectional Properties Act (SPA) 2020 marked a significant shift in the regulation of sectional properties, introducing a fundamentally different approach from its 1987 predecessor.
This legislative overhaul transitions property management from external companies to owner-controlled corporations, fundamentally reshaping rights, responsibilities, and dispute resolution mechanisms in apartment complexes and gated communities.
Under the previous regime, management companies operated with considerable autonomy, handling everything from service charge collection to common area maintenance. While seemingly efficient, this system proved problematic in practice.
Financial mismanagement became commonplace, with opaque accounting practices and misappropriation of funds. Enforcement of community bylaws - whether concerning noise levels, parking violations, or architectural modifications - was inconsistent.
Most troublingly, decisions affecting shared spaces often occurred without meaningful input from unit owners, leading to frequent disputes and a general sense of disenfranchisement among residents.
The 2020 Act addresses these shortcomings through several key innovations. Most significantly, it mandates the formation of owner corporations governed by elected boards, fundamentally shifting power dynamics.
These corporations now control the property seal, with any legal instruments requiring signatures from at least two board members. Major decisions regarding common areas – including alterations or disposals – demand unanimous owner approval, preventing the unilateral actions that previously caused so much contention.
Dispute resolution mechanisms have been reimagined. The Act establishes Internal Dispute Resolution Committees to handle conflicts between owners, with decisions enforceable through courts.
This replaces the previous system where disputes went before the Business Premises Rent Tribunal, whose rulings were final and not subject to appeal. The new framework allows for appeals to the Environment and Land Court, providing a more balanced approach to conflict resolution.
Perhaps most forward-looking is the Act’s explicit recognition of digital solutions. Corporations are now empowered to conduct voting electronically and communicate with members through digital platforms, improving governance transparency and owner participation.
Yet challenges persist in this new era of communal property management. The very mechanisms designed to ensure fairness - particularly the requirement for unanimous consent on major decisions - can paradoxically lead to gridlock when owners disagree.
Enforcement remains problematic, as penalty imposition still requires court intervention, creating delays and additional costs. Perhaps most crucially, many owner corporations struggle with resident apathy, particularly regarding service charge payments, which can cripple maintenance budgets and degrade shared amenities.
The success of this legislative transformation ultimately depends on several factors: robust education campaigns to ensure owners understand their new rights and responsibilities, the development of alternative dispute resolution mechanisms to complement the court system, and widespread adoption of the digital tools the Act now permits.
Amrit is Consultant, Real Estate and Finance at DLA Piper Africa, Kenya (IKM Advocates), Jimmy an Associate and Dorcas Legal Trainee in the same firm
