Condominiums : The next big worry

High rise buildings have started to dominate the entire Colombo cityscape. Every block of land around the corner is identified as a potential site for condominiums and other high-rise buildings. Concepts of vertical living have been brought forward. Just a few days back, a building collapsed in Wellawatte, burying many lives under concrete.   

The archaic condominium law would bring in more damage than expected. Therefore, it is high time the government appointed a competent, professionally-qualified planning team to manage the archaic condominium law, as most condominiums are constructed without approved plans and deeds. This could lead to a major fire or other 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?  
Speaking to the Daily Mirror, Kirthimala Gunasekera and Ajithaa Edirimanne, Attorneys-at-Law and two experienced lawyers in land matters explained the urgency to look into reforms necessary for the Condominium Law.  

Many condos are constructed without approved plans and title deeds: Kirthimala

“A person buying a condominium will only look at the brochure,” says Kirthimala Gunasekara. “He will not ask whether the law has been followed, plans have been approved, whether deeds can be obtained, insurances taken or whether there are fire safety measures and whether the Fire Brigade could get up to the 30th floor if a fire breaks out. Even if you do a self-assessment before buying a condominium, you will find that the answers are vague and negative. In addition to that, the plans of the condominium-building may not be approved by the relevant authorities and many condominiums exist on a ‘No document’ basis. Therefore the documents necessary to construct and own condominiums according to the law are not approved.”  

Speaking further, Mrs. Gunasekara said many condominium properties in several areas, especially Wellawatte did not observe any of the aforesaid approval requirements. “Hundreds of condos are constructed without approved plans and title deeds. In most instances, developers have collected funds and cannot be contacted to approve the plans and issue deeds to owners.”  

Ajitha expresses that as a consequence, there are many sub-standard buildings mushrooming in urban areas and the likelihood of a major disaster is a certainty.   

“No doubt there are several condominiums managed by reputed companies according to the law but the situation is not satisfactory, as all condominium buildings need to be protected against fire and sub-standard constructions. Contractors and developers are not responsible after they complete the construction and foreign contractors may not be in the country to answer questions.”  

Documents necessary to construct and own condominiums

• Approved plans are duly registered in the land registry to be attended to by the developer.  
• Approvals are necessary from the multitude of organisations, local authorities, urban councils or Pradeshiya Sabhas. Further, approvals from the Urban Development Authority (UDA) are necassary and in addition, special approvals may be required from the Central Environment Authority (CEA); Electricity Board (CEB); National Water Supply and Drainage Board (NWS and DB): and Condominium Management Authority (CMA)  
• Approved notarised deeds should be attended by the notaries for the owners.   

The obtaining of approvals is not an easy task as the existing law does not make it easy for developers to construct major multi-storey projects. This is because getting all approvals in time from the organisations would be quite time-consuming since these processes are spread out into various Government organisations and extra-legal methods have sprung into place.   

Therefore condominium buildings are constructed without approved plans and the execution of deeds and are hence known as ‘No Document Condos’.  

The condominium industry is no longer in 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, there are no regulations issued to date to implement the provisions of the existing law which have not only caused confusion to unit owners but also made the task of the regulator difficult.  

Revising the law, introducing regulations and making the regulator effective with training for its staff, are all crucial to making condominiums safe. Sri Lanka needs to pay more attention to the risk of fire and the need to have an emergency action plan for such unexpected situations.   

However in such a ‘No Document’ environment, Sri Lanka seems to be blissfully happy with the boom going to the edge of a cliff awaiting a fall.
   

Who is responsible?

According to Kirthimala and Ajitha, the law enforcement authorities and developers share a common set of responsibilities to condominium owners and the society (the entire neighbourhood in which a condominium is situated) if a fire breaks out. It is therefore absolutely essential that condominiums are built with all approvals and if the law is cumbersome and insufficient, immediate action should be taken by those responsible to remedy the situation.  

The law has made it more complicated to approve plans. Therefore, when a single approval and registration is sufficient, a Condominium plan has to be approved and registered twice according to the present law.  

Sri Lanka has a unique registration system for plans; here the plans have to be registered twice and this requirement definitely has to be amended since it is not only a cumbersome procedure but also costly for the developer.

Quick fix solution–to ignore the law and build without approvals

The duo further said that a majority of developers refrain from following the required approval and registration procedures. Pre-sales of units thus take place without registered approved plans with the help of attractive brochures.  

Even the banks 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 respective condominium units.  

Such extra-legal methods to defeat the Condominium law are available as the old law relating to registration introduced by the British (Registration of Documents Ordinance of 1927) is still in force.   
Some resort to non-notarial deeds which are a sort of written document, or retain the agreements to sell that are often not notarised and merely go into occupation. These documents do not confirm ownership.  

One of the very important provisions of the condominium law is the appointment of management committees in order to continue to manage the units. Today, some condominiums have no such management committees appointed to manage garbage, maintenance of buildings, electricity and water and there is no proper organisation to strictly enforce the law.  

Experiences

Some reported experiences of those living in condos without the law enforcement authorities taking any action  

• The common area including the main entrance has been leased out to third parties by the Developer without the consent or knowledge of the unit owners. The Common areas are jointly owned by all unit owners and therefore their consent is absolutely necessary to lease or alienate their joint ownership rights.   
• The doors are shifted by neighbouring owners to the corridors enclosing space   
• The water tanks are unclean and leaking   
• Construction defects have become a nightmare for some prospective 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 of building works  
• Parking of vehicles blocking entrances and fire hydrants is a common feature   
• Floor tiles come off and cracks appear on the walls  
• Electrical connections are temporally repaired by individuals without any supervision   
• The Council does not have the funds to attend to repairs and blames the developer for the defects  
• Since title deeds have been issued to all its unit owners, the developer is not unduly concerned. Though the Council understands the law and wants it to be rectified, the developer controls or influences the Council preventing the rectification of this situation  

Various criteria need to be fulfilled before owners reside: Devsriyani Jayasundera

On a follow-up, the Daily Mirror spoke to Devsriyani Jayasundera, Vice President of the Institute of Town Planners to find out in which ways condo-developers should be responsible when constructing condominiums. “When looking at it in the economic perspective, having condominiums is good. People are moving towards vertical living but when developing new condominiums, there are various environmental issues as well. Wetlands and other places would get disturbed and therefore the biodiversity would be greatly affected. But there are several aspects to consider when constructing a condominium.”  

Mrs. Jayasundera further said the condominium law had been in existence for a long time. “Earlier, the developer could approve the building, build it and give approval. There are different ways residents could claim ownership of apartments. In the provisional method, the building plan with the condominium could be approved, the houses are sold and then the apartment is built. Thereafter the apartments are given to their owners. In the semi-condominium method, the condominium is partly built and once the agreement is settled, the apartments are given to the owners. In the case of a Condominium Property, the approval is being obtained. But when these developers get the plan approved they have to abide by certain rules and regulations. These include the expanse of the site and the number of floors.”   

“One main issue we have is that when developers are given approval to build five floors, they end up building six or seven,” Mrs. Jayasundara further explained. “Once they get the approval they need to get the Certificate of Conformity (COC) from the land registry and then get approval from the Condominium Management Authority (CMA). One major issue we have come across is that in most instances, these developers have no idea about these condominium plans. Once the approvals have been given, the Fire Brigade also comes in for supervision and this has been done in the past few years. In certain condominiums, there is no ventillation and the apartment blocks are extremely small. Nowadays even a two-storey building is a condominium and there are various criteria that need to be fulfilled before being given out to owners.”

Common elements are a must: CMA General Manager

Speaking to the , CMA General Manager, R.K. Jayaweera said there were various common elements that need to be taken into consideration when building a condominium. “This includes the staircase, slabs and public places within the building complex. Initially we need a plan that gives an in-detail outline about the specifications of each unit. This has to be extended to each floor and likewise a condominium plan needs to be designed. Along with this plan, the architectural design, condominium survey plan and deed have to be submitted to the CMA. When these documents are in order, a Preliminary Clearance Certificate is required to get the approval from the Urban Development Authority (UDA). In addition to this certificate, the following documents are also required :  

• Condominium survey plan  
• Approval of the building  
• Architectural drawing   
• Structural engineering certificate   
• Electrical engineering certificate  
• Fire certificate (approved by the Fire Brigade)  

“Without these documents the building cannot be registered at the land registry,” Jayaweera said. When asked about The Excellency building which collapsed in Wellawatte recently, he said they hadn’t got any approval including the necessary certificates prior to the construction.