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Introducing the Unit Titles Act NHC Board

19th March, 2010

INTRODUCING THE UNIT TITLES ACT, CAP. 416

The Condominium Property Framework
(by. Dr. R.W. Tenga & Beatus Malima, School of Law, University of Dar Es Salaam)

1. The Concept of Unit Titles and Ownership of Units

1.1. The Concept
The unit titles concept is a form of joint ownership of real
property. It is distinguished from other types of joint or common
ownership because of the three distinct parts that make up the
unit titles. The first part is the exclusive ownership of a single
unit;1 the second part is joint ownership, as tenants in common
with others, of common areas or common property;2 and the
third part is an agreement or scheme among owners of various
units the management and administration of the unit property
(the association to manage the common property).3

In more formal terms, therefore we can posit that unit titles

means the form of ownership of real property created under the
statute (the Unit Titles Act, No. 16/2008); hereinafter referred to
as the Act, and is comprised of units owned individually by one
or more persons together with joint ownership of an undivided
share in the common areas or common property.

The unit titles ownership therefore, is a divided ownership of real

property which occurs when certain portions of a real property
are owned by specific owners (called co-owners) for their use

1
See Section 6(4) and Section 28(1) of the Act
2
See section 9(4), and Section 11(2) of the Act
3
See Section 35 of the Act
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alone and certain portions of the property are held in co-

ownership by co-owners for their common use.

The unit title owner owns her unit individually and shares
undivided interests in the common areas (e.g. sidewalks,
hallways, pools, clubhouse, storage place etc.) as a tenant in
common with other unit title owners.

Each unit is a real property on its own.4 The owner of that piece
of property therefore has all rights attached to the real property.5
He may acquire, hold and dispose it just like any other person
holding a Granted Right of Occupancy under the Land Act.6
Equally the unit owner is individually responsible for his unit.7

He is free to transfer his unit to whomever he chooses; just as he

is free to purchase it from another holder or from the developer.
The purchaser of the unit title may choose any mode which best
suits him to buy the property. Typically, however, he borrows
money to finance the acquisition of the unit. He grants the
lender a mortgage which is secured by the real property (i.e. the
Unit Title).8 This tells why the unit title ownership is so much
needed especially in a country like Tanzania, where acquisition
of a decent home is a nightmare for the majority.

A unit title owner pays monthly or annually tax bills which are
directly sent to him by the relevant taxing authority in his

4
See Section 6(4) and 28(1) of the Act
5
See Section 9(3) and section 28(2) of the Act
6
See Section 20(1)(b) and Section 28(1) and (2) of the Act
7
See Section 27 of the Act
8
See Section 33 of the Act
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individual capacity as the owner of a real property. He is a king

of that castle in person.

1.2. Understanding the Parts of the Unit Property.

Three terms, viz, unit, common property and unit association are
crucial in understanding the subject. The Unit is a portion of the
property which is owned by a specific owner or co-owned for
exclusive use by some of the owners.9 The Unity Property is the
total of the units and the entire land making the units. 10 This is
owned jointly by all co-owners. The Unit Titles Act, describes the
Unity Property as the property including single building or
several buildings comprising of sections of unified site together
with the land on which they are located and all real rights
existing in their favour.11 The unit property may be in the form of
high rise structures or in rows or terraces, or in buildings in a
cluster form.12

So, the unit property includes the common area or common

property, the common area for restricted use and the units. The
common area or common property is the whole portion of
property that is owned by all owners for their common use.13 The
common area for restricted use means a common area used by
one or several co-owners.14 The ownership of the common areas
of the property are divided into fractions (fractional shares) and
they belong to one or several co-owners.15 Each co-owner holds

9
See Section 3; 6(4); 9(3); 20(1)(b); 28(1), 33 of the Act.
10
See section 4(1) of the Act
11
See Section 5(1) of the Act.
12
See Section 5(2) of the Act.
13
Section 3 of the Act
14
Ibid
15
Section 6(1) of the Act
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an undivided right of ownership in the common areas equal to

the relative size of his fractional share.16

The association refers to the governing entity for the community

and each unit owner is a member of the association.17 The
association is governed by the Management Committee elected
by the members.18 Among the most important functions of the
Management Committee is to appoint the Managing Agent,
whose duty is to manage the units, the movable and immovable
properties of the Association.19

1.3. Compromises and the Common scheme

The benefits of unit title ownership are many. They include a
sharing of maintenance responsibilities and the expenses for
quality recreation facilities. They promote a concept of
community stability and security and provide an organization
with central responsibility for efficient and quality operation of
the property. Along with the benefits, however, there are some
compromises which must be made. This statement well captures
the compromises which unit holders have to make on a daily
basis.

Every man may justly consider his home his castle and
himself as the King thereof; nonetheless his sovereign fiat
to use his property as he pleases must yield, at least in
degree, where ownership is in common. The benefits of
condominium living and ownership demand no less. The
individual ought not be permitted to disrupt the integrity of
16
Ibid
17
Section 35 of the Act
18
Section 47(1) of the Act
19
Section 49(1) of the Act
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the common scheme and through his desire for change,

however laudable that change might be.20

The overriding goal/principle in the unit title concept is the

promotion of the health, happiness and peace of mind of the
majority of unit owners. Thus, the association has the continual
responsibility to maintaining that delicate balance between the
individual rights of unit owners and preservation of the common
scheme for the benefit of all the owners.

1.4. The Unit and the Unit Owners

The Unit is that portion or part of the condominium property
which is subject to the exclusive ownership. The boundaries and
the description of each unit must be specifically set forth in the
Unit Plan creating the unit property, since the ownership of a unit
entitles the owner to its exclusive use. Once the real property
has been submitted to unit property status, all the individual
units become separate parcels of real property.
The use of the unit must be consistent with the regulations and
restrictions in the Unit Plan, and the association has an
irrevocable right of access to each unit when it is necessary to
maintain, repair, or replace a portion of the common element(s)
or any portion of the unit to be maintained by the association
pursuant to the Unit Plan of the unit property. The association
also has the right of access to each unit when it is necessary to
make emergency repairs in a unit to prevent further damage to
common elements or to another unit.

Sterling Village Condominium Inc. vs Breitenbach, 25150.2d 685, (4th DCA,

20

1971)
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When an owner receives title to a unit property, the title also

includes the ownership of an undivided share of the common
elements that are assigned to the unit by the Unit Plan. The unit,
together with its undivided share in common elements, is known
as the unit parcel. A Unit Owner means the owner of a unit
parcel, and title includes ownership of both the unit and a
portion of the common elements assigned to it.

In order for property to be subject to exclusive ownership in a

unit property, it must be created and identified as a unit and it
must have an undivided portion of the common elements
assigned to it. A room or area of the unity property called a unit
but not assigned a percentage of ownership in the common area
has been classified by the courts in America as common area
and its owners claim to exclusive ownership has been
disallowed.21

1.5. Common Areas

The portion of the unit property jointly owned by all of the
owners is defined as common area and it includes all of the
unit property that is not located within the defined boundaries of
the individual units. The property legally described in a unit plan
must be one of two kinds: it must be a unit specifically
described with a percentage of common area ownership
assigned to it, or it will be common area and jointly owned by all
of the unit owners. No portion of the common area is subject to
exclusive ownership for so long as it remains a part of the unit
property.

21
Daytona Development Corp. vs. Berquist 308 So.2d 548, 550 (Fla. 2d DCA 1975)
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The common areas are, however subject to exclusive use by a

particular unit or units to the exclusion of others if the unit plan
permits it.22 The association may by special resolution if the by-
laws permit grant a lease to an owner permitting the owner an
exclusive use of a part of the common property.23

Common areas set aside for exclusive use by the unit plan are
known as common areas for restricted use and examples
include balconies, patios, storage lockers and assigned parking
spaces.24 Except for these limited common areas, all other
portions of the common areas are for use by all of the unit
owners, although an individual owners use must not hinder or
encroach upon the lawful rights and use by other owners.

In additional to an assignment percentage of the common

elements and the right to use them, each unit also has additional
accessory rights or appurtenances which are inherent with the
ownership of a unit title.

The ownership of the common areas is divided into fractions.

Each fraction belongs to one or several co-owners. Every co-
owner holds undivided right of ownership in the common area
equal to the relative size of his fraction share.25

2. Registration of Unit Titles

2.1. The Unit Plan
Because the Unit is a small portion or a part the Unit Property;
the first step into registering it must be the registration of the
22
Section 11(4) of the Act
23
Section 24 of the Act
24
Section 6(3) (a),(b) and (c) of the Act
25
Section 6(1) of the Act
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Unit Property. The Unity Property cannot be registered unless the

Unit Plan is first presented to the Registrar of the Titles and the
latter has given his consent and registered it.

So, the first step is making an application to the Registrar of

Titles to register the Unit Plan.26 Upon Registration of the Unit
Plan, separate units can be registered and certificates of titles
issued in respect thereof.27

The Unit Plan is a document on basis of which the Unity Property

is registered for unit ownership.28 It indicates the boundaries of
the common property29 and is used as a reference point to
distinguish each unit from the rest of others in the Unity
Property.30 It does so by assigning a specific number or symbol to
each and every unit.

Before registering the Unit Plan the Registrar shall demand two
things. They are the Certificate of a Registered Land Surveyor31
and the Certificate of the Local Authority giving its approval. 32 In
case of the existing structure there is a third requirement. That is
the Certificate of a Registered Architect showing that the plan
does correlate with the existing structure.33

2.2. The Certificate of Unit Title

26
See Section 8(1) of the Act
27
See Section 9 of the Act
28
See Sections 14 and 16 of the Act generally.
29
See Section 14(1)(b) of the Act
30
See Section 14(1)(c) of the Act
31
See Section 15(1)(a) of the Act
32
Section 15(1)(b) of the Act
33
Section 15(2) of the Act
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On registration of the Unit Plan, different units can be registered

and certificates granted.34 A unit title certificate issued to a
person is deemed to have been issued under the Land
Registration Act [Cap 334 R.E. 2002]35 and the owner of that
certificate has all the rights enjoyed by the owner of the Granted
Right of Occupancy.36 He may sell, transfer, lease, charge, or
otherwise deal with that unit in the same manner and form as
the land held under the Land Registration Act.37

The Unit Title Certificate shall indicate the common share of the
common property.38 This shall not be dealt with or disposed by
the unit owner39 unless it is so specifically provided for. 40 That is
to say that the Unit Owner can deal with his unit the way he
wants but he cannot do so for any area indicated as the common
area or common share. Why? That share is owned jointly with all
unit owners.41 It is not owned separately. It cannot therefore be
at the discretion of any one, except the association, which
represents the interests of all unit owners.

3. The Transition
Upon completion of the unit property the developer sells the
units or the entire unit property. The developer before doing so is
required to do various things.42 He must deliver the sale

34
Section 8(1)(b) of the Act
35
Section 9(2) of the Act
36
Section 9(3) of the Act
37
Ibid
38
Section 9(5) of the Act
39
Section 9(6) of the Act
40
Section 11(4) of the Act
41
Section 11(2) of the Act
42
Section 29(1) of the Act
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agreement43 to the purchaser and the written notice indicating

the status of the charge in case of charges.44

Together with the sale agreement the developer must also

deliver to the purchaser the existing or proposed by laws45; the
existing or proposed management agreement46; the existing or
proposed recreational agreement47; the lease of the common
property48; a certificate of title in respect of the unit or proposed
unit49; any charge or proposed charge which may affect the title
of the unit50 and the Unit Plan51.

If the unit has a charge over it, then the developer is duty bound
to deliver to the purchaser a written notice indicating the
maximum principal amount52; the maximum monthly payment53;
the amortization period54; the grace period55; the prepayment
terms56 and the interest rate or formula57.

The law entitles the purchaser of the unit to rescind the sale
agreement within ten days after the date of its execution.58
However, he cannot rescind the sale agreement if all the

43
Section 29(1)(a) of the Act
44
Section 29(2) of the Act
45
Section 29(1)(b) of the Act
46
Section 29(1)(c) of the Act
47
Section 29(1)(d) of the Act
48
Section 29(1)(e) of the Act
49
Section 29(1)(f) of the Act
50
Section 29(1)(g) of the Act
51
Section 29(1)(h) of the Act
52
Section 29(2)(a) of the Act
53
Section 29(2)(b) of the Act
54
Section 29(2)(c) of the Act
55
Section 29(2)(d) of the Act
56
Section 29(2)(e) of the Act
57
Section 29(2)(f) of the Act
58
Section 29(3) of the Act
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relevant documents were delivered to him ten days before the

execution of the said sale agreement.59

4. Proprietary Rights and Obligations of Co-owners

4.1. The Rights
The Unit Title Ownership vests in the owner certain fundamental
rights.60 But, equally it also obligates the owner with certain
responsibilities. Both these tight and obligations are spelt out in
the Act and in the Associations By-Laws.61

The Unit Owner has the right to use his unit and the common
area for his own needs.62 He has the right to dispose his unit as
and when he wishes as permitted by law.63 He is entitled to
participate in the management of the association64 which
manages the unit property and which by virtue of his unit titles
he is automatically a member of that association. He has the
right to vote and be voted to become a member of the
Associations Governing Committees.65

Where a co-owner suffers any prejudice leading to the diminution

of the value of his unit as a result of carrying out works needed
either for the unit property or one of the unit holders only, that
co-owner is entitled to compensation.66 It is the association if it

59
Section 29(4) of the Act
60
See Section 20 of the Act generally.
61
Section 19(1) of the Act
62
Section 20(1)(a) of the Act
63
Section 20(1)(b) of the Act
64
Section 20(1)(c) of the Act
65
Section 20(1)(d) of the Act
66
Section 20(5) of the Act
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ordered the carrying out of the work or the person who ordered
such work.67

The owner of the common property and each unit owners have
the right of support, shelter and protection, free passage of
water, sewage, drainage, gas, electricity, use of light and any
other services.68 They also have the right of easements.69

4.2. The Obligations

The first and most important obligation is to observe the
associations by laws.70 The associations by-laws binds each and
every owner71 since the law deems them as covenants among
the unit owners to observe and perform all the provisions of the
said by laws.72

Each co-owner is obliged to contribute the costs of maintaining

and operating the unit property.73 The co-owners who use the
common areas for restricted use have the obligation to
contribute the costs resulting from such use of those portions. 74
Further every owner is bound not to interfere with the carrying
out of works on the unit property or on a specific unit title.75

5. Disposition of the Unit

There are many ways in which a Unit Title can be transferred to
another person. The Unit Titles Act does not create new
67
Ibid
68
Section 21 of the Act
69
Section 22, 23 and 25 of the Act
70
Section 20(2)(a) and 50(1) of the Act
71
Section 50(5) of the Act
72
Section 50(6) of the Act
73
Section 20(2)(b) of the Act
74
Section 20(3)
75
Section 20(4) of the Act
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dispositions modalities or abolish the already existing once. The

statute has simply adopted the existing dispositions under the
land Act.

5.1. Sale of Units

As already alluded to each unit of the property constitutes a
distinct object of real property and may be the subject of
disposition by the owner in whole or in part.76 According to the
framework of the Act, there are two ways of selling the units.
First is the sale by the developer77 to any interested person and
second is the sale by the unit owner78 to another person.

In mode under which the unit will be sold the law demands only
that the seller must provide sufficient information to the
prospective buyer as the worthiness of the property he is seeking
to purchase. That is the import of elaborate conditions of sell as
provided for in the statute.79

5.2. Leasing of the Unit

The law entitles the owner of a unit to lease it to another
person.80 The owner is required within a period of seven days
after the tenant having taken the lease of the unit to issue the
association a notice in writing stating the name of the tenant
occupying the unit and other particulars as may be required by
the by-laws.81

76
Sections 6(4); 9(4); 20(1)(b); 28; 33 and 80(1) of the Act.
77
Section 29(1) of the Act
78
Section 30(1) of the Act
79
See specifically sections 29(1); 29(2) and 30(1) of the Act
80
Section 28(2) of the Act
81
Section 31(2)
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The Association may also require the owner to pay to; and
maintain with the association a deposit which the association
may use for; repair or replacement of the property of the
Association; and maintenance, repair or replacement of any
property which is subject to a lease granted to the owner of the
unit under the Act which is damaged destroyed, lost or removed
as the case may be by the person occupying it.82

In a period of seven days after the tenant has ceased to rent the
unit the owner must give the Association a notice in writing
stating that his unit is no longer rented.83 In such a case the
Association shall within 20 days after receiving such a written
notice regarding such cessation of the lease, return the deposit
to the owner.84 In case it had applied the deposit to one of the
intended purposes it will produce to the owner a statement of
account for such expenditure and the remaining balance.85

5.3. Mortgage of a Unit

The owner of a unit can mortgage his unit in accordance with the
provisions of the Land Act.86 That the mortgagor and the
mortgagee are bound to adhere to all the procedures as provided
for under the Land Act. The statute however has put in place
good mechanism to protect the mortgagee.87
Agreements for the benefit of mortgagees may be included in
the by law, in which case, they shall constitute contractual
obligations of the Association toward any present or future

82
Section 31(1)(b)
83
Section 31(3)
84
Section 31(4)(a)
85
Section 31(4)(b)
86
Section 33
87
Section 34 of the Act
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mortgagee holding a mortgage on any unit.88 Upon acquiring

ownership of a unit through enforcement of its rights under a
mortgage, a mortgagee shall succeed to all rights and
obligations of a co-owner.89

6. Management of the Unit Property

6.1. The Unit Association
This is a very powerful entity. Every Unit Property has a unit
association. This body has one overriding function. That is to
represent the interests of all unit holders. In so doing it manages
the unit property for the benefit of all.

Every member of the unit property is a member of the

association. If a unit, however, is owned by two or more persons
whether as joint tenants or co-owners, such owners will seek one
person among them who will be their representative in the
association.90

The association is created by the statute and is given a status of

a body corporate,91 able to sue and to be sued in its own
capacity.92 Its functions are many.93 They include management of
the common property,94 establishment and maintenance of a
fund for administration and management of the unit property, 95
to ensure that all insurance policies in respect of the property are

88
Section 34(2),(3) of the Act
89
Ibid
90
Sections 38 and 39 of the Act
91
Section 35(1) of the Act
92
Section 36(1)(c) of the Act
93
Section 40(1) of the Act
94
Section 40(1)(a), (b) of the Act
95
Section 40(1)(c), (d) of the Act
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in place,96 to ensure that all requirements of the local authority

are met,97 to provide and submit new plans when required 98 and
to ensure that the lease under which the land is held is
enforceable.99

The association is also particularly charged with the

responsibility of enforcing its By Laws.100 Further the association
is tasked with the duty to fully control, manage and administer
the movable and immovable properties of the common
property.101

The association has the powers to invest the funds available to it

if not immediately required if and only if the by-laws allow the
association to take such a course of action. 102 It may give
approval for any lease, transfer or grant of easement affecting
the common property.103

Each member of the association has voting rights proportional to

his unit factor.104 A unit factor is the proportional share of a
common area as determined by the ownership of the individual
units in the unity property.105 The larger the unit factor the bigger
voting rights share.

6.2. Management Committee

96
Section 40(1)(e),(f),(g), (h) and (i) of the Act
97
Section 40(1)(j) of the Act
98
Section 40(1)(k) of the Act
99
Section 40(1)(l) of the Act
100
Section 40(2) of the Act
101
Ibid
102
Section 41 of the Act
103
Section 42(1)(3) of the Act
104
Section 44(1) of the Act
105
Section 3 of the Act, cf. the fractional share, see also section 6(1) and (2) of the Act
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Each association is required by law to have the Management

Committee. It is established by the statute.106 Among the
functions of the Committee is to appoint a Managing Agent
whose task is to manage the units, the movable and immovable
properties of the association.107 It is the intention of the
Parliament that the Managing Agent be a professional person.108

The Committee is required to call or convene an annual general

meeting of the owners once in each year,109 approve resolutions
which were properly passed,110 and to hear and determine
complaints from aggrieved members of the Association.

7. Disputes Resolution
The statute requires that any disputes arising in between the
members of the association then the same must first be referred
to mediation. In that respect it is the association which is vested
with jurisdiction to mediate the conflicting parties.111 As already
intimated the Committee has the powers to hear and determine
the complaint referred to it by the aggrieved members of the
association.112

When mediation fails then the parties are required to file their
dispute to the High Court Land Division.113 If, however, there is
no High Court, Land Division for the determination of the dispute

106
Section 47(1) of the Act
107
Section 49(1) of the Act
108
Section 49(2) of the Act
109
Section 48(1) of the Act
110
Section 42(5) of the Act
111
Section 69 of the Act
112
Section 40(6) of the Act
113
Section 70 of the Act
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the parties can file his dispute to the District Land and Housing
Tribunal.114

8. Termination of Unit Status

The question is what happens after the unit status has been
terminated? The answer is that upon termination of the unit
status, the unit owners become entitled to the common property
as tenants in common in shares proportional to their unit
factor.115 That happens, however, upon registration of their
respective interests.116

The unit owners will be required to seek registration of the

common property to the Registrar.117 Upon such application
being made the Registrar shall issue title for that common
property.118

After the application is made for issuance of new titles the

Registrar will cancel the ownership register for each unit in the
plan119; cancel the titles to each unit in the plan120; establish an
ownership register for the common property121; and issue in the
names of the owners new titles.122

114
Ibid
115
Section 74(2) of the Act
116
Ibid
117
Section 74(3) of the Act
118
Ibid
119
Section 74(4)(a) of the Act
120
Section 74(4)(b) of the Act
121
Section 74(4)(c) of the Act
122
Section 74(4)(d) of the Act