ARRANGEMENT OF SECTIONS

PART I
Preliminary

SECTION

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]

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 Cap. 33:01 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.