Resident associations are groups that are formed by residents of an area for purposes of communing together and protecting interests of the area within which they reside. Their role as over the years evolved into that of a watchdog. Though some resident associations are very vibrant others have ignored their functions. As a property owner it is important to understand the importance of the resident associations. They have a significant impact when it comes to determining the use of land within their areas. Many resident associations have been viewed negatively by land owners but it is important to know what the law has to say about this.
Until recently no statute recognized their role but the Physical Planning Act provided an indirect way within which the associations actively ensured that they influenced land use approvals by the local authority. When a person applies for a change of user, the local authority gazettes the application and invites comments from the public. Resident associations use this forum to endorse the change and development thereafter or express their disapproval. An example of such a scenario is in the case of Ocean Freight (EA) Ltd v Esmailji & another.
Some of the resident associations are just groups of the residents that are not registered entities. Others are registered entities and much organised examples are Runda Association, Karen and Langata District Association, Eastleigh Business District Association. These associations create legal vehicles within which the residents use to enforce their interests especially in land use planning and enforcement of physical planning zoning laws. A good example is the Runda Association which is very vibrant and active even at the stage when property owners apply for building plans approvals.
In some extents and particularly in the case of Karen and Langata District Association they have in a bid to tame ad hoc development in the area, published rules in respect to land use and development for those areas. The rules were made under Local Physical Development Plan of the area and presented to the Nairobi City Council for approval. The Nairobi City Council is yet to approve them. These are examples of active associations with sufficient clout to affect property owners’ rights particularly the land use aspect. In the case of Karen and Langata District Associationthe same, obtained orders from the court requiring the rates collected in their area under the Rating Act be placed in a special fund that will be applied to the benefit of the area residents.
Whereas for some property owner’s resident associations may not have sufficient power for others it is a different issue. In the context of development housing (apartment), estates and gated communities the associations may not take shape of amorphous groups or registered associations. They take the form of Management Companies. These have much more control over their residents. Their rules are integrated into the title documentation i.e. Lease or in cases of property under the Sectional Properties Act the corporation created for management purposes has power to make by laws. This structure in the case of apartment, estates & gated communities makes it mandatory for the property owner to get requisite consents before utilising the property for different purposes.
Urban Areas and Cities Act, 2011
However, a new Act, the Urban Areas and Cities Act of 2011, has now provided a structured manner in which citizens and even resident associations will be integrated to the affairs of the town. The Act provides that a city or urban area shall develop a system of governance that encourages participation by residents in its affairs, and shall establish appropriate mechanisms, processes and procedure for, consultative sessions with locally recognized resident organisations; and also for reporting to the residents.
The Act requires the citizens be involved in the preparation, implementation and review of the integrated development plan which every city and municipality must have. Therefore as a property owner and legal representative in determining what use to put your property it might be prudent to consider the local resident organisations and consider their input.
For resident associations it is important to be aware of the New Act and the power that the association holds when it comes to governance in terms of land use. It is important for the residents associations to designate representatives to enable participation as provided for in the Urban Areas and Cities Act.