CHAPTER 33:04
SECTIONAL TITLES

ARRANGEMENT OF SECTIONS

   SECTION

PART I
Preliminary

   1.   Short title

   2.   Interpretation

   3.   Registers

PART II
Concept of Sectional Ownership of Buildings

   4.   Sectional ownership of buildings

   5.   Application of Cap. 33:02

PART III
Preparation of Development Schemes

   6.   Application to Director for approval of sectional plan

   7.   Manner of preparing sectional plan

   8.   Duties of land surveyors and architects and non-liability of State

   9.   Approval of sectional plan by Director

   10.   Improper conduct of land surveyors and architects

   11.   Restriction on sale of units occupied by tenants

   12.   Application for registration of sectional plan and opening of sectional title registers

   13.   Registration of sectional plans and opening of sectional title registers

   14.   Effect of registration of sectional plans

   15.   Amendment and cancellation of sectional plans

PART IV
Registration and Common Property

   16.   Preparation of deeds by conveyancer

   17.   Proof of certain facts in connection with deeds and documents by means of certain certificates

   18.   Registration of transfer of ownership and other rights

   19.   Ownership of common property

   20.   Dealings with common property

   21.   Transfer of mortgaged unit, etc.

   22.   Compulsory acquisition of common property or rights therein

PART V
Subdivision, Consolidation and Extension of Sections

   23.   Approval of plan of subdivision or consolidation by Director

   24.   Registration of subdivision of section

   25.   Registration of consolidation of sections

   26.   Extension of sections

PART VI
Extension of Schemes

   27.   Extension of schemes by addition of sections

   28.   Extension of schemes by addition of land to common property

PART VII
Exclusive use of Common Property and Servitudes

   29.   Rights of exclusive use of parts of common property

   30.   Rules regarding exclusive use areas

   31.   Implied servitudes

   32.   Creation of servitudes

   33.   Ancillary servitudal rights

   34.   Non-application of Deeds Registry Act to implied servitudes

PART VIII
Participation Quotas and Developers

   35.   Participation quotas

   36.   Sale or letting of sections

   37.   Shares of developers in buildings and land

PART IX
Rules and Formation of Associations

   38.   Rules

   39.   Formation of association as bodies corporate

   40.   Functions of associations

   41.   Powers of associations

   42.   Functions and powers of associations to be performed or exercised by trustees

   43.   Fiduciary position of trustees

   44.   Proceedings on behalf of associations

   45.   Powers of curators ad litem

   46.   Security for costs by applicants for appointment of curators ad litem

PART X
Owners, Administrators and Buildings

   47.   Duties of owners

   48.   Insurance by owners

   49.   Appointment of administrators

   50.   Recovery of judgment debts from owners

   51.   Destruction of or damage to buildings

   52.   Disposal on destruction of buildings

   53.   Unencumbered sections destroyed by State or local authority

   54.   Valuation of land and buildings and recovery of rates by local authorities

   55.   Appointment of Sectional Titles Regulation Board

   56.   Power to make rules and regulations

Act 7, 1999,
S.I. 18, 2003.

An Act to provide for the division of buildings into sections and common property for the acquisition of separate ownership of sections coupled with joint ownership of common property; the control of certain incidents attaching to separate ownership of sections and joint ownership of common property; the transfer of ownership of sections and the registration of sectional mortgage bonds over, and real rights in sections; the conferring and registration of rights in and the disposal of common property; and other matters connected therewith or incidental thereto.

[Date of Commencement: 1st May, 2003]

PART I
Preliminary (ss 1-3)

1.   Short title

   This Act may be cited as the Sectional Titles Act.

2.   Interpretation

   (1) In this Act, unless the context otherwise requires-

   "architect" means a person holding a professional qualification recognised by Architects Association of Botswana;

   "association", in relation to a building and the land on which the building is situated, means the association of that building formed in terms of section 39(1):

   "building" means a structure of a permanent nature erected or to be erected and which is shown on a sectional plan as part of a scheme;

   "common property", in relation to a scheme, means-

   (a)   the land included in the scheme;

   (b)   such parts of the building as are not included in a section; and

   (c)   land referred to in section 28;

   "conveyancer" has the meaning assigned to it under the Legal Practitioners Act;

   "court" means a court of competent jurisdiction;

   "Deeds Registry" means the Deeds Registry established under the Deeds Registry Act;

   "developer" means a person who is the registered owner of land, situated within the area of jurisdiction of a local authority, on which is situated or to be erected a building which he has divided or proposes to divide into two or more sections in terms of a scheme, or the holder of the right referred to in section 27 to extend a scheme, or his successor in title, and includes-

   (a)   for the purposes of sections 11 and 18(3)(c), also the agent of any such person or his successor in title, or any other person acting on behalf of any of them; and

   (b)   for the purposes of rebuilding any building that is deemed to have been destroyed, as specified in section 51, the association concerned;

   "development scheme" means a plan in respect of which a building situated or to be erected on land within the area of jurisdiction of a local authority is, for the purposes of selling, letting or otherwise dealing therewith, to be divided into two or more sections;

   "Director" means the Director of Surveys and Mapping appointed under the Land Survey Act;

   "exclusive use area" means a part or parts of the common property for the exclusive use by the owners of one or more sections, as mentioned in section 29;

   "land" means the land comprised in a scheme as shown on a sectional plan;

   "land surveyor" has the meaning assigned to it under the Land Survey Act;

   "lease" for the purposes of section 20(1) means a lease which-

   (a)   was entered into for a period of not less than 10 years;

   (b)   was entered into for the natural life time of the lessee or any other person mentioned in the lease; or

   (c)   is renewable from time to time at the will of the lessee indefinitely or for periods which, together with the first period, amount in all to not less than 10 years;

   "notary public" has the meaning assigned to it under the Legal Practitioners Act;

   "owner" means, in relation to-

   (a)   immovable property, subject to paragraph (b), the person registered as owner or holder thereof and includes the trustee in an insolvent estate, or the liquidator of a company or close corporation which is an owner, and the executor of an owner who has died, or the representative, recognised by law, of an owner who is a minor or of unsound mind or is otherwise under a disability, if such trustee, liquidator, executor or representative is acting within the scope of his authority;

   (b)   immovable property, real rights in immovable property and notarial bonds-

      (i)   registered in the names of both spouses in a marriage in community of property, either one or both of the spouses;

      (ii)   registered in the name of only one spouse and forming part of the joint estate of both spouses in a marriage in community of property, either one or both of the spouses; and

   "owned" and "ownership" have a corresponding meaning;

   "participation quota", in relation to a section or the owner of a section, means the percentage determined in accordance with the provisions of section 35(1) or (2) in respect of that section for the purposes referred to in section 35(3) and shown on a sectional plan in accordance with the provisions of section 7(3)(g);

   "quota", in relation to a section or the owner of a section, means the participation quota of that section;

   "registrable" means capable of being registered in terms of the Deeds Registry Act;

   "Registrar" means the Registrar of Deeds appointed under the Deeds Registry Act;

   "scheme" means a development scheme;

   "section" means a section shown as such on a sectional plan;

   "sectional mortgage bond" means a mortgage bond hypothecating-

   (a)   a unit or an undivided share in a unit or land held under a separate sectional title deed; or

   (b)   a registered lease or sub-lease of any such unit or undivided share in a unit or land; or

   (c)   any other registered real right in or over any such unit or undivided share in a unit or common property or the rights referred to in sections 27 and 29;

   "sectional plan", in relation to a scheme, means a plan approved by the Director-

   (a)   which is described as a sectional plan;

   (b)   which shows the building and the land comprised in the scheme, as divided into two or more sections and common property; and

   (c)   which complies with the requirements of section 7, and includes a sectional plan of a subdivision, consolidation or extension as provided for in this Act;

   "sectional title deed" means a certificate of registered sectional title or a deed of transfer in respect of a sectional title;

   "sectional title register" means the register referred to in sections 3 and 13(1)(b) and includes any sectional plan registered under this Act, and the Deeds Registry's duplicate of any certificate of registered sectional title deemed to be incorporated in such register;

   "special resolution" means, subject to subsection (2), a resolution passed by a majority of not less than three-fourths of the votes (reckoned in value) and not less than three-fourths of the votes (reckoned in number) of members of an association who are present or represented by proxy or by a representative recognized by law at a general meeting of which at least 30 days written notice, specifying the proposed resolution, has been given, or a resolution agreed to in writing by at least 75 per cent of all the members of the association (reckoned in number) and at least 75 per cent of all such members (reckoned in value) personally or by proxy or by a representative of any such member recognized by law:

   Provided that in circumstances determined in the rules, a meeting of the association may be convened for a date 30 days or less after notice of the proposed resolution has been given to all the members of the association;

   "unanimous resolution" means subject to subsection (3), a resolution-

   (a)   passed unanimously by all the members of an association who are present or represented by proxy or by a representative recognized by law at a general meeting of the association of which at least 30 days' written notice, specifying the proposed unanimous resolution, has been given, and at which meeting at least 80 per cent of all the members of an association (reckoned in number) and at least 80 per cent of all the members (reckoned in value) are present or so represented:

         Provided that in circumstances determined in the rules, a meeting of the association may be convened for a date 30 days or less after notice of the proposed resolution has been given to all the members of the association; or

   (b)   agreed to in writing by all the members of the association personally or by proxy or by a representative of any such member recognized by law;

   "undivided share in common property", in relation to an owner, means an undivided share of that owner in common property as determined in accordance with the quota of the section of which he is the owner and, in relation to a section, means an undivided share in common property apportioned to that section in accordance with the quota of the section;

   "unit" means a section together with its undivided share in common property apportioned to that section in accordance with the quota of the section.

   (2) For the purposes of the definition of special resolution in subsection (1), a notice referred to in that definition shall be deemed adequate if-

   (a)   it has been delivered by hand to a member not less than 30 days prior to the relevant general meeting; or

   (b)   it was despatched by prepaid registered post not less than 30 days prior to such meeting to the address of a member's unit in the relevant scheme, or to such other address as a member may have indicated in writing for the purposes of such notice.

   (3) For the purposes of the definition of unanimous resolution in subsection (1)-

   (a)   a notice referred to in that definition shall be deemed adequate if it has been delivered to, or despatched to the address of, a member, referred to in paragraphs (a) and (b) respectively of subsection (2);

   (b)   a member present or represented at a meeting referred to in that definition, who himself, or through a proxy or representative, as the case may be, abstains from voting on the resolution in question, shall be regarded as having voted in favour of the resolution; and

   (c)   where the resolution in question adversely affects the proprietary rights or powers of any member as owner, the resolution shall not be regarded as having been passed unless such member consents in writing thereto.

3.   Registers

   There shall be kept in the Deeds Registry by the Registrar-

   (a)   a register for the registration of sectional plans; and

   (b)   a register for the registration of sectional titles.

PART II
Concept of Sectional Ownership of Buildings (ss 4-5)

4.   Sectional ownership of buildings

   (1) Notwithstanding anything to the contrary in any law-

   (a)   a building comprised in a scheme and the land on which the building is situated, may be divided into sections and common property in accordance with the provisions of this Act;

   (b)   separate ownership of the sections or an undivided share thereof may be acquired in accordance with the provisions of this Act;

   (c)   the owners of the sections shall own the common property in undivided shares in accordance with the provisions of this Act;

   (d)   any real right may be acquired in or over any such section or an undivided share therein or common property in accordance with the provisions of this Act; and

   (e)   the Registrar may, in accordance with the provisions of this Act register in the Deeds Registry a title deed whereby ownership in, or any lease of, or any other real right in or over, any such section or an undivided share therein or common property is acquired.

   (2) Subject to subsection (3), a scheme may relate to more than one building erected or to be erected on the same piece of land, or more than one piece of land, whether contiguous or non-contiguous.

   (3) The building to be divided into sections shall be situated only on one such piece of land or on two or more such contiguous pieces of land registered in the name of the same person and in respect of which a certificate of consolidation of title has been registered.

5.   Application of Cap. 33:02

   (1) Except as is otherwise provided in this Act or any other enactment, the provisions of the Deeds Registry Act shall, with such adaptation as may be necessary, apply in relation to all documents registered or filed or intended to be registered or filed in the Deeds Registry in terms of this Act.

   (2) The Registrar may reproduce or cause to be reproduced any document referred to in subsection (1) by means of microfilming or any other process which in his opinion accurately and durably reproduces any such document, and may preserve or cause to be preserved such reproduction, in lieu of such document.

   (3) A reproduction referred to in subsection (2) shall, for the purposes of the Deeds Registry, be deemed to be the original document, and a copy obtained by means of such reproduction and which has been certified by the Registrar as a true copy of such reproduction, shall be admissible in evidence and shall have effect as the original document.

   (4) A unit shall be deemed to be land.

PART III
Preparation of Development Schemes (ss 6-15)

6.   Application to Director for approval of sectional plan

   (1) Where a developer intends to carry out a development scheme, he shall cause to be prepared by a land surveyor or an architect, a sectional plan in accordance with the provisions of section 7 to be submitted to the Director in terms of section 9.

   (2) Where an existing building, which is to be converted into a development scheme, is a residential building occupied by tenants under a tenancy agreement, no application shall be made by a developer to the Director under subsection (1) unless the developer-

   (a)   has, prior to the making of the application, notified, every tenant, in writing by a letter delivered either personally or by registered post, of a meeting of all tenants in possession to be held at a date, at least 14 days after the delivery of the letter, in the building or such other building as may be specified in the letter which is within a reasonable distance from the building in question and is located within the area of jurisdiction of the local authority;

   (b)   has, by himself or his agent at the meeting, furnished the tenants with full particulars of the proposed development scheme;

   (c)   has given every tenant the option to acquire the unit he occupies in accordance with the provisions of section 11; and

   (d)   has attached to his application, a certificate in the prescribed form that he has complied with the provisions of paragraphs (a) - (c).

   (3) For the purposes of subsection (2), "tenant" means a tenant who is a party to a tenancy agreement entered into with the developer or any of his predecessors in title.

   (4) Notwithstanding the provisions of subsection (2), a developer may submit his application to the Director if all the tenants have stated in writing that they do not wish to acquire the proposed units which they occupy and a conveyancer has certified in writing that all such statements have been received in respect of all the units in question.

   (5) If any sectional plan relates to a building which is in the process of being erected, the developer shall cause the relevant documents to be submitted in terms of section 9 if such building-

   (a)   is sufficiently completed for the measurements referred to in section 8 (1) to be undertaken, and

   (b)   whilst the erection thereof is not yet completed, complies with the provisions of the Town and Country Planning Act, and the Building Control Act and the regulations made thereunder.

7.   Manner of preparing sectional plan

   (1) Subject to subsection (2) a sectional plan shall be prepared and signed by a land surveyor or an architect in accordance with the provisions of this section.

   (2) Any delineation of an exclusive use area of which the boundaries are not represented by physical features of a permanent nature shall be prepared by a land surveyor and signed by him.

   (3) A sectional plan shall-

   (a)   delineate the boundaries of the land in accordance with the relevant diagram or general plan and the location of the relevant building or buildings in relation thereto;

   (b)   indicate the name of the scheme;

   (c)   include a plan to scale of each storey in the building shown thereon;

   (d)   subject to subsections (4) and (5), define the boundaries of each section in the building and distinguish each section by a number;

   (e)   show the floor area to the median line of the boundary walls of each section, correct to the nearest square metre, and the total of the floor areas of all the sections;

   (f)   delineate in the prescribed manner any exclusive use area;

   (g)   have endorsed upon or annexed to it a schedule specifying the quota of each section in accordance with section 35(1) or (2) and the total of the quotas of all sections shown thereon; and

   (h)   be drawn in such manner and contain such other particulars as may be prescribed.

   (4) The common boundary between any section and another section or common property shall be the median line of the dividing floor, wall or ceiling, as the case may be.

   (5) For the purposes of subsection (3)(d) the boundaries of a section shall be defined-

   (a)   by reference to the floors, walls and ceilings thereof, or as may be prescribed; and

   (b)   in respect of a part of a section (such as a stoop, porch, balcony, atrium or projection) of which the boundaries cannot be defined in terms of paragraph (a) but being appurtenant to a part of that section which can be defined in terms of that paragraph, in the manner prescribed.

   (6) A section may consist of non-contiguous parts of a building.

8.   Duties of land surveyors and architects and non-liability of State

   (1) A land surveyor or architect preparing a sectional plan shall prepare the sectional plan from an actual measurement undertaken by him or under his direction in such manner as will ensure accurate results, in accordance with the provisions of this Act.

   (2) The State, any officer or employee in the service of the State shall not be liable for any defective measurement or work done or performed in relation to any sectional plan by a land surveyor or architect, notwithstanding the fact that such sectional plan has been approved by the Director.

9.   Approval of sectional plan by Director

   (1) When a sectional plan is prepared in terms of section 7(1), the land surveyor or architect, as the case may be, shall on behalf of the developer submit to the Director, for his approval, the prescribed number of copies of the sectional plan.

   (2) The submission of the sectional plan to the Director shall be accompanied by-

   (a)   a certificate issued by an architect or a land surveyor stating that-

      (i)   the proposed division into sections and common property complies with the provisions of the Town and Country Planning Act and the Building Control Act and the regulations made thereunder;

      (ii)   the building to which the scheme relates, was erected in accordance with approved building plans;

   (b)   where the application is signed by a person authorised to sign on behalf of the developer, a written authority by such developer in which the person concerned is authorised to sign the application on behalf of the developer;

   (c)   in the case of an application in respect of a building referred to in section 6(5), a certificate from the architect or the land surveyor concerned to the effect that the building and the land comply with all the applicable requirements mentioned in this subsection;

   (d)   if section 6(2) applies to the scheme-

      (i)   an affidavit by the developer stating that that section has been complied with;

      (ii)   a copy of the notice referred to in section 6(2)(a) and the certificate referred to in section 6(2)(d); and

      (iii)   where applicable, a certificate from a conveyancer in terms of section 6(4);

   (e)   if section 6(4) does not apply to the scheme, an affidavit by the developer to that effect.

   (3) The manner of submission of the sectional plan and other documents shall be prescribed.

   (4) The Director shall not be responsible for investigating the correctness or accuracy of any document submitted to him in terms of subsection (2) or section 23, 26 or 27.

   (5) The Director shall not approve a sectional plan, unless the applicable documents have been submitted to him in terms of subsection (2) and such plan has been prepared in accordance with this Act.

10.   Improper conduct of land surveyors and architects

   A land surveyor or architect shall be guilty of an offence if he-

   (a)   signs, except as provided in such circumstances as may be prescribed, a sectional plan or any other plan referred to in this Act, required in connection with the registration thereof, and in respect of which he has not carried out or supervised the measurements, and has not carefully examined and satisfied himself of the correctness of the entries in any records and of the calculations in connection therewith which may have been made by any other person;

   (b)   signs any defective plan knowing it to be defective;

   (c)   makes an entry in a field record, a copy of a field record or other document which purports to have been derived from actual measurement in the field, when it was in fact not so derived;

   (d)   supplies erroneous information to the Director in connection with any scheme, knowing it to be erroneous; or

   (e)   contravenes any provisions of this Act,

shall be guilty of an offence and liable on conviction to a fine not exceeding P2 000 or to a term of imprisonment not exceeding 12 months, or to both.

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