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Unit Title is a type of property ownership where home owners own a defined part of a building such as an apartment, generally known as a unit. They also have shared ownership, as tenants in common, of common areas such as lifts, lobbies or driveways. These areas are known as common property. Our reporter GERALD KITABU interviewed a lawyer Benedict Ishabakaki from Tanzania Human Rights Defenders Coalition (THRDs-Coalition) on the advantages of these Unit titles. Here are his views. Excerpts…
QUESTION: Are unit titles, as a new kind of ownership of real estate property available in other countries as well?
ANSWER: Yes, first of all, as I said before, the unit title properties are kind of joint ownership of the real estate property in which each individual has its portion referred to as unit and other property owned commonly.
These unit titles are termed differently in different country, for Example in UK is referred as Common Hold while in USA, Canada and Dubai it is referred as Condo. In Tanzania we refer it as Unit title Property.
Therefore the unit title can be apartment blocks, townhouses and suburban flats. They can be used for residential and commercial purposes, including office blocks, industrial or retail complexes and shopping malls. A unit title development consists of three dimensional spaces, however it is not common to all unit properties these are: Principal units (Unit), accessory units and common property or area (fox survey)
Q: What do you mean by principle units?
A: The principal unit comprises of the main space for which a title will be issued, that is a dwelling or apartment or office space, and the title issued by the register comprise of this core unit.
Accessory unit is referred as common property if used by more than one person.
Therefore accessory are secondary spaces that must be attached to a principal unit. They usually perform some specific function for the principal unit although they do not need to be physically connected, a good example are garages, car parks, and storage or service areas.
Although accessory units are usually held under a single ownership they can be held under multiple ownership, that is several principal units sharing a hallway access and therefore is common property.
Other spaces and property which are owned jointly or used jointly like driveways, gardens walls balcony or elevators are referred as common properties. The common property is held in an "undivided ownership", but in proportion to each individual unit assigned ‘Unit Entitlement.'
Q: When did Tanzanians start experiencing this new kind of ownership of real estate properties in Tanzania?
A: In Tanzania we did not have the unit title property before 2008. It was until 2008 when the Parliament passed the new law to recognize the unit title property, the unit title Act 2008 Cap 416 and Regulations GN No 357 of 2009. Under the law and regulations now someone may develop unit title property and can either mortgage, lease or sale each unit.
However, practically in the real market people are selling the units without following the conveyance procedures. For example the sale of flats may be done by only using the contract of sale of land without taking the subsequent steps to legitimize the sale including notification and approval from the commission of land as provided by the land Act and the land regulation made there under.
So in real sense what purchaser would do is to purchase the unit and only hold the contract of sale as an evidence of his ownership, but not the title of the unit, and this is because there were no laws for this.
Under this circumstance in case the right of occupancy expires its renewal process becomes a merry go around the vendor assumes responsibility because the purchaser is not legally recognized in the register as the owner.
Q: Why the unit titles were delayed to be introduced in Tanzania?
A: The answer is very simple, in fact the laws were previously silence on the issue of unit title because of the common law principles in land law that is ad coelum rule (that ownership land is below and up to the core above up to the sky ) and quicqud Plantatur solo, solo credit (what is fixed to the soil belong to it). Therefore it was kind impossible for someone to own unit title. Despite the introduction of the unit titles the land laws are not in harmony and good changes are needed to sort out the anomalies.
Another reason for the absence of the unit title before 2008 was the fact that the Land Registration Act [R.E 2002] (Cap 334) under Section 53 and 83 allows division and partition of the parcel to run vertically only.
It was impossible for the vendor to transfer or divide the parcel both vertically and horizontal something which the law under unit title allows. And lastly under Section 22 of the Land Act which provide for the incidence of the right of occupancy, the section was silent on the issue of sub title or unit title ownership.
Q: Are there any advantages?
A: The first aim is to facilitate urban livelihood and planning of towns. This includes good residential infrastructures, access to shops and smooth running of the business and easy access to offices. In one way this is indirect way of reducing trafficking jams. It facilitate housing Finance such as Mortgage and Lease. It is easy and less expenses for government to organize and facilitate provision of social services example sewage, electricity hospital and others.
This is because under the unit title over 100 families for example people are centered in one place therefore simple for provision of social service. This is different from the current social-economic life whereby people are scattered and each day, the city is expanding, for example Dar es Salaam city; people have spread up to Bagamoyo and other interior parts therefore it is hard for the government to provide all the basic social services needed. It is helpful to catch up with the designing, planning and archetype system; a good example is taken from Dubai.
Further more, the unit title property is supported by separate legislation and is often preferred as a stronger or more definitive title in populated urban like Dar es Salaam, Arusha, Mwanza and other growing cities.
Property management issues are controlled by the established by- laws, constitution and association legally registered. Height limits of the building are easily managed because the developer of unit title has to send the proposal for approval before the project. And it gives individual ownership of the buildings and private open spaces, with common ownership being limited to the nominated common areas, such as driveways, play grounds, and air spaces above the units.
Q: Do you have any example?
A: Yes, for Example, in May 2013, New Zealand had more than 14,000 parcels of land that had been subdivided as unit developments, all with a wide range in the number of units on each parcel of land. Most of these are residential.
About one quarter is commercial or industrial. All these have helped the government to provide key basic social services such as water, health, sewage and Electricity.
Q: How can one apply and develop unit title property in Tanzania?
A: The Law and regulation provide for necessary steps and requirements for someone to develop the Unit title although it takes long procedure. For example, Section 4 of the Unit Title Act provides the avenue for developer to create units so that the real estate developed can be co-owned.
Therefore under the normal procedure if someone would like to develop the unit title property for the purpose of selling the units or mortgage the units, the following steps provided under the Unit title Regulation 2009 are vital.
First, application to the registrar for registration of unit plan, developer will fill form no 3, developer when applying for the unit plan has to make sure he attach the following; a certificate of registered land surveyor form No 10A, a certificate from a local government authority Form No 10 B and certificate of a registered architect.
Then the developer will proceed with the building process until it is done. When the developer finishes the building he will advertise the sale of each Unit.
Then application to the registrar to register each unit form 4, then issuance of certificate of a unit form no 5 which is same as certificate of title under the normal right of occupancy. Last stage is for owners to register their association and to employ Managing Agent of the unit property. Normally Managing agent can be a company registered under company Act.
Having done with selling all the units and each unit having its own title, then the developer is no longer liable or own the properties but rather the association of the owner will be managing the properties by employing professional person ' Managing Agent'
Q: If someone is owning the property similar to the unit title like Kariakoo is he eligible?
A: The fact is that the Unit Title Act can not apply retrospectively, meaning that for those who own kind of property similar to unit title like Kariakoo flats, they can not apply this law and its regulation to legalize their ownership as unit title property.
What the government can do is to make regulations which will enable those owner to shift from normal property ownership under the right of occupancy to unit title property. This will facilitate development and smooth operation of land laws.
Q: So, being an expert in this area what is your advice to investors?
A: I call upon investors including private public partnership to direct their thinking in case of developing their real estate into unit title as a kind of ownership of properties. During the elections campaigns, President Jakaya Kikwete used to proclaim better life to every Tanzanian, I think his slogan could be easily implemented if people will make use of this ownership.
