What you need to know:
- Consent of the existing owners must be sought before the construction of additional units on apartment blocks.
- Judge rules that allowing further development would be going against the spirit of the Sectional Properties Act.
- Justice Munyao further noted that the law contemplates the existence of a management company that would be in charge of areas not covered by individual units and that the defendant cannot be allowed to take advantage of the lapse.
Property developers cannot build additional apartment units above existing blocks without the consent of purchasers who are owners of sub-leases, a court has ruled.
The court said allowing further development would be going against the spirit of the Sectional Properties Act as the building of additional units was not contemplated when the existing ones were sold.
The decision by the Environment and Land Court arose in a case where Mr Khalid Rehman, who bought three apartments out of nine on three blocks in Nyali, Mombasa, sued Mr Ahmed Jan Mohamed, the owner of the land, who sought to build an additional unit in one of the blocks.
Through lawyer Gikandi Ngibuini, Mr Rehman 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.
Justice Sila Munyao noted that the proposed development by Mr Mohamed entailed the addition of a unit that was not part of the plan that was approved when the apartment units were sold.
To permit the defendant to embark on a development that the purchasers did not contemplate, Justice Munyao said, goes against the Sectional Properties Act and would be allowing a developer to cheat purchasers.
Justice Munyao further noted that the law contemplates the existence of a management company that would be in charge of areas not covered by individual units and that the defendant cannot be allowed to take advantage of the lapse to prejudice purchasers of existing units.
The court noted 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.
“There was no evidence that the plaintiff or any other apartment owners were consulted nor was their opinion sought by the county government of Mombasa before giving approval,” said Justice Munyao.
The court issued a permanent injunction stopping the defendant from undertaking any development until he complies with the mandatory provisions of the Sectional Properties Act.
It also ordered the defendant to remove the additional development and have the property restored to its original state.
The plaintiff had argued that the new construction was a violation of his right to property under Article 40 of the constitution.
In his statement of defence, Mr Mohamed told the court that Mr Rehman’s ownership of apartments did not relate to ownership of the entire plot.
Mr Mohamed said he not only has a proprietary interest in two apartments he retained for himself but the whole plot as well as he was the sole owner of the land.