Condominiums reaching up to the sky
The Island
27 May 2017

The collapse of the building in Wellawatte is a good eye-opener to the Government for appointing a competent, professionally qualified planning team to manage the archaic condominium law as most of the condominiums and high rise buildings are without approved plans and deeds. This could lead to a major fire or calamity due to construction defects.

With Colombo’s skyline rapidly changing with high rise buildings, are we paying adequate attention to the law that governs condominiums and their fire safety measures in case of fire?

A person buying a condominium will only look at a glossy brochure. He will not ask whether the law had been followed, plans have been approved , whether deeds can be obtained , whether insurances has been taken, whether there are fire safety measures and whether the Fire Brigade has the capability to reach the floor of the condominium he is thinking of buying an apartment in.

Even if you do a self-assessment before buying a condominium, very often the answers are vague and negative, plans of the condominium building are not approved by the relevant authorities and the condominiums are existing on a ‘NO DOCUMENTS’ basis [The documents necessary to construct and own condominiums according to the law are not approved by engineers or the local authority or they are obtained via extra-legal methods]

Many condominium properties in several areas, especially in Wellawatte, do not observe any of the aforesaid approval requirements. Hundreds of condos have been occupied without approved plans and title deeds. Developers have collected funds and cannot be contacted to approve the plans and issue deeds to owners.

However in such a ‘No Documents’ environment Sri Lanka seems to be blissful ignorant with the boom reaching the edge of the cliff awaiting a catastrophe. The country seems to be enjoying the boom moving like athletes on steroids

No doubt there are condominiums that are functioning well managed by reputed companies according to the law; but by and large the situation is not satisfactory as contractors and developers consider themselves above the law. After they complete the construction many contractors are un-contactable and foreign contractors may not be in the country to fulfill the approval obligations

No one to enforce the law?
According to the existing law several important approval documents are necessary to construct, own and manage high rise buildings. But who will enforce the law ? Merely punishing individuals after a disaster is not a solution for loss of life. NGO’S and the media should play a central role in this matter as this affects the human rights of those occupying the buildings and others who live close by.

Law before construction
Plans of the buildings should be available, duly approved by the respective local authorities, UDA and the Condominium Management Authority and registered in the respective land registries. This has to be done by all developer.

Approvals are also necessary from the multitude of organisations, local authorities, urban councils or Pradeshiya Sabhas. Further, approvals from Urban Development Authority (UDA) in addition, special approvals may be required from Central Environment Authority (CEA); Ceylon Electricity Board (CEB); National Water Supply and Drainage Board (NWS&DB): and Condominium Management Authority (CMA)

Law after construction
Approved notarized deeds attested by notaries duly registered in the respective land registries are essential to own the units.
A management committee should be appointed to manage the building and to keep it safe for the owners. The committee should mange the property according to a constitution and subsequent purchasers of units need to be given a copy of the constitution

This is one of the most important provisions of the condominium law that is neglected and there is no proper organization to strictly enforce the law.

Reported experiences of those living in condos
Electrical connections are temporally repaired by individuals without any supervision.
Common areas including the main entrance have been leased out to third parties by the developer without the consent or knowledge of the unit owners. These areas are jointly owned by all unit owners and therefore their consent is absolutely necessary to lease or alienate their joint ownership rights.
Extensions are made shifting walls to the corridors blocking access.
The water tanks are unclean and are leaking.
Construction defects have become a nightmare for some buyers of condominiums. Unscrupulous developers find ways and means to hide defects till the units are sold. It is rare for a buyer to detect construction defects unless he or she has a background in civil engineering or a specialized knowledge in building works.
Parking of vehicles blocking entrances and fire hydrants is a common feature.
Floor tiles come off and cracks appear on the walls.

Complicated archaic laws to obtain approvals
Obtaining approvals is not an easy task; the existing law does not make it easy for developers to construct major multi-storey projects getting all the approvals in time from the concerned organizations due to the cumbersome processes in various government organizations and the extra legal methods that have proliferated.

Sri Lanka has a unique registration system for plans; they have to be registered twice. This has to be amended. Not only is this procedure cumbersome, it is also costly for the developer

The quick fix solution—ignore the law and build without approvals. There is no one to enforce the law unless there is a disaster. The minority of developers refrain from obtaining the required approvals and following registration procedures. Pre-sales of units backed by beautiful brochures often take place without registered approved plans and Certificate of Conformity [COC] issued by the local authority.

Even the banks which mortgage the condominium units disregard the law and register tripartite agreements on the main land in the books of the registry as the plans are not approved and registered. They do not register mortgage bonds for the separate units. In this lawless environment extra legal methods to defeat the condominium law is inevitable.

Some developers resort to a written document called an Agreement to Sell and get the owners to go into occupation even without obtaining a Certificate of Occupation. An Agreement to Sell does not confirm ownership nor will the document guarantee the safety of the building

The condominium industry is long past its infancy. The principle enactment came into being in 1973 with two important amendments in 1982 and 2003. There are many areas that the law has not been addressed to meet the current demand to build with the due approvals, especially phased condominium property development, "must be built" common elements, and mandatory disclosure requirements for developers apart from several other important areas. A new section need to be added to the current law to cover "planned housing communities" in which too house owners share common elements as in condominium properties. Revising the law, introducing regulations and making the regulator effective with training of staff are all crucial to make such properties safe.

The lawmakers need to consult erudite lawyers who have already researched and studied the law. Unfortunately in Sri Lanka laws relating to property rights are established by non-lawyers and foreign advisers . [Ajithaa Edirmanne is author of a book on condominiums presented to the Law Commission the required reforms in 2014]

Even if there are new laws, who will enforce the existing laws? Will the authorities apply the penal provisions on those who violate the laws before a fire or before a building collapses? These are matter the law makers and NGOs must consider. We must wait and see what will happen.

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