A lecture conducted for lawyers attending the "Post Attorney Diploma in Conveyancing and Real Property Rights" of the Institute of Advanced Legal Studies affiliated to the Sri Lanka Law College (2019 - 2020)

1. CONDOMINIUM PROPERTY LAW
- Presented by Ajithaa Edirimane, LLB (Colombo) MLB (Hamburg)
Attorney-at-Law & Notary Public
COPYRIGHT - No part of this slide presentation shall
be copied or extracted or used in anyway without
Ajithaa Edirimane’s permission

2.  SYLLABUS
 1. 21/9/2019 (11.15 – 1.15) Condominium concept and Preliminary Steps
 2. 12/10/2019 (11.15 – 1.15) Creation of a condominium property and Developer’s Role
 3. 19/10/2019 (09.00 –11.00) Seminar with resources persons from UDA, Land Registry
and Survey General’s Department
 4. 26/10/2019 (09.00 –11.00) Management of Condominium Properties, Condominium
Councils, By-laws and dispute resolution (lecture and a presentation from
CMA resource person)
5. 26/10/2019 (11.15- 01.15 ) one hour Mock Inquiry conducted by the CMA
resource person, Condominium Meetings and Financial Issues
 6. 09/11/2019 (09.00 – 11.00) Revision of Condominium properties, Cessation of a
condominium property, Condominium property sales and transfers of title
 7. 23/11/2019 (09.00 – 11.00) Review of the areas covered in previous sessions, a
Mock negotiation between a buyer and seller, Discussion on
questions and problems on condominium related issues.
COPYRIGHT - No part of this slide presentation
shall be copied or extracted or used in
anyway without Ajithaa Edirimane’s
permission

3. 21/9/2019 (11.15 – 1.15) CONDOMINIUM CONCEPT AND
PRELIMINARY STEPS
 11.15 – 12. 15
 Historical background
 Applicable law - Apartment Ownership Law and amendments
 Condominium property, Condominium unit, Common Elements,
Accessory Parcels, Share Values, Servitudes
 12.15 – 1.15
 Types of condominium properties (Provisional, Semi and completed)
 Residential and Commercial Condominium properties
 Phased Condominium Properties
 Questions
COPYRIGHT - No part of this slide presentation shall be copied or
extracted or used in anyway without Ajithaa Edirimane’s permission

4. CONDOMINIUMS ARE CHANGING IDEAS OF OWNERSHIP
AND CONTRIBUTING TO THE SHAPING OF THE CITY
2007

5. CONDOMINIUM PROJECTS COMPLETED AND PENDING COMPLETION ….

6. HISTORICAL
PERSPECTIVE
 Origin of condominiums in the ancient Roman Empire.
 “Condominium” – ‘Con’ + ‘Dominium’ = joint ownership / shared ownership
 Roman Law principle - ‘Anything attached to the land goes with the land’ –
supeficies solo cedit
 - ‘Improvements yields to the ground’
- the owner of the land owns anything built on it.
 - Vertical ownership : from the bowels of the earth to the heaven above
 Condominiums as a type of immovable property with owners acquiring
ownership over a horizontal layer of a building was first established in the
Roman Empire. But was there a law to give title to units in a horizontal layer?
In the past, ownership of immovable property
resulted in owners in a single layer of land spread
over the surface of the earth…
Condominium ownership constitutes the ‘stacking of
owners in a vertical column many stories high’-
ownership of horizontal layers of a building.
Digest of
Justinian -
Differing views
of academics
– origin in early
Europe in
Germany c.
1700

7. OSTIA – THE HARBOUR CITY
OF ANCIENT ROME IN CENTRAL ITALY
Ennius, the Roman poet,
referred to these as "the
great halls of heaven,"

9. LEGISLATION

 In Sri Lanka ownership of immovable property is based on the Roman Dutch Law principle - the
owner of the land owns everything attached to his land
 To acquire ownership of horizontal layers of a building a new regime of law had to be created by
way of statute -
 Condominium Property Act No. 12 of 1970 – repealed
 The Apartment Ownership Law No. 11 of 1973 (Principle enactment) This Act was subsequently amended by
the following legislation:
 Apartment Ownership (Amendment) Act No. 45 of 1982
 Apartment Ownership (Special Provisions) Act No. 4 of 1999 & Apartment Ownership (Special Provisions) Act
No. 27 of 2002
 Apartment Ownership (Amendment) Act No. 39 of 2003
 Apartment Ownership (Special Provisions) Act No. 23 of 2018

10. STATUTE CREATES A NEW CONCEPT
OF OWNERSHIP OF IMMOVABLE PROPERTY
 REGISTRATION of Plan of subdivision & Deed of Declaration by the Owner of the land
creates ownership of horizontal layers of the building.
 Apartment Ownership Law & its amendments relating to ownership of a condominium
property (Sec. 9 of the principle enactment amended by Sec. 13 of Act No. 39 of 2003. –
Sec 9(5) IMPORTANT and Sec. 15 relating to Act No. 21 of 1988 and proviso in Sec. 44 of
39 of 2003
The Apartment Ownership Law in terms of Sec. 3 of Act No. 39 of 2003 applies to :
1. Any building erected on an alienated and capable of being subdivided into units
(parcels) – CONDOMINIUM PROPERTY based on a Condominium Plan
2. Any building proposed to be erected on alienated land and capable of being
subdivided into units (parcels) – PROVISIONAL CONDOMINIUM PROPERTY based on a
Provisional Condominium Plan
3. Any building partly erected on alienated land on which there are more than one
completed condominium unit fit for human habitation – SEMI CONDOMINIUM
PROPERTY based on a Semi Condominium Plan

11. CONDOMINIUM PLAN
 The Condominium Plan shall comprise –
 (i) A survey plan or plans which shall be prepared and drawn by a licensed surveyor
 (a) delineate the external surface boundaries and boundary marks of the proposed Condominium
Property
 (b) specify the division, volume and folio in which the Condominium Property is registered and the
surveyed area thereof;
 (c) include a vertical section of each subdivided building showing
 (i). the floors and ceilings of each story; and
 (ii). the height of each storey
 (d) include a description, as well as the vertical section and dimensions, of each building or parts
thereof proposed to be erected within the Condominium Property
 (e) delineate, each proposed parcel and define the boundaries thereof by reference to floors and walls
showing the horizontal dimensions.
 (f) show the approximate floor area of each parcel;
 (g) define the common elements of the Condominium Property;
 (h) bear an endorsement by the person preparing it to the effect that the building shown in the
Condominium Plan is within the external horizontal boundaries of the Condominium property; and
 (i) have attached to it a certificate of a qualified architect or a qualified civil or structural engineer to the
effect that the parcels shown therein are the same as those existing on the Condominium Property;

12. TYPES OF OWNERSHIP IN A CONDOMINIUM PROPERTY – DUAL OWNERSHIP
CONDOMINIUM UNIT - INDIVIDUAL OWNERSHIP
 Designed for independent use
 In a building of more than one storey
 Divided into one or more rooms
 Sometimes with Accessory Units
 Direct exit to a road or to a common area leading to a road
(Sec. 41(6) of Act No. 39 of 2003)

13.  Establishing title to units
- Separate ownership of unit
- Co-ownership / Tenants in common over
the Common Elements based on the Share
Value assigned to the Unit
 Creation of Management Corporation
Condominium Plan No….
- All unit owners as Members
Effect of Registration

14. ACCESSORY PARCELS
 A condominium unit may or may not have “accessory parcels”.
 Since it is referred to as a “parcel”, there should be six boundaries, similar to a
condominium unit.
 An accessory parcel is a unit owned with a condominium parcel. Garage space,
balcony, terrace, storage space, etc., fall within the definition of “accessory
parcel”.
 Sec. 41 of Act No. 39 of 2003 – Accessory Parcel means a “parcel” intended for
separate ownership with a specified condominium parcel or parcels for any
purpose. (Also Sec. 11 of principle Act amended by Act No. Sec. 7 of Act No. 45
of 1982 by adding Sec. 11A and by Act No. 39 of 2003)
 In Regulations 18.9.2 of the Regulations of the Survey Department, the number
assigned to an accessory parcel should indicate the parcel to which such
accessory parcel is made appurtenant: eg. 1A/FO/U1/A1 refers to an accessory
parcel appurtenant to parcel No. 1A/FO/U1.
 In Regulation 18.9.4 of the Regulations of the Survey Department, an Accessory
Parcel situated outside a subdivided building may not have the bounds on the
Zenith and Nadir.
 Cannot be disposed off separately.

15. COMMON ELEMENTS – SEC. 26 OF ACT NO. 11 OF 1973 AMENDED BY ACT NO 45 OF 1982
 Land not comprised in any unit
 foundations, columns, gardens, external beams, supports, main walls, roofs, walls, lobbies,
corridors, stairs, stairways, fire escapes, entrances, exits of the building or buildings;
 car parks, recreational or community facilities, parking areas, storage spaces;
 central and appurtenant installations for services such as power, light, gas, hot and cold
water, heating, refrigeration and air conditioning, telephone, radio, rediffusion, garbage
disposal and incinerators;
 lifts, escalators, tanks, pumps, motors, fans, compressors, ducts and in general all apparatus
and installations existing for common use;
 premises for use by security guards, caretakers and watchmen;
 all facilities described as common elements in any plan for a condominium development
approved by the authority responsible for such approval and all facilities which may be shown
in the legend of any plan as common elements;
 all other parts of the land not comprised in any unit necessary or convenient to the existence
and maintenance and for the reasonable common use and safety of the common elements
including the roads and access drains and ditches, lanes parks, playgrounds, and other open
spaces connected with the condominium property.
 These cannot be disposed off separately.

16. SHARE VALUES AND THEIR IMPORTANCE
 Share Values determine the following – (Sec. 20A of Act No.45 of 1982
 The undivided entitlement over the Common Elements by each unit owner
 Voting Rights of all unit owners
 The proportion of the Service Charge payable by each unit owner
 The entitlement to the residue of the Condominium Property in the event of a
dissolution of the property. (Sec. 20Q (4)(a) of Act No. 45 of 1982)
 Calculation of Share Values – (not given in the Act)
 Based on the Regulations of the Survey Department 18.8.5 (b) - taken as the floor area
of each parcel and the aggregate share value entitlement of all the parcels as the total
of the floor areas of all such parcels, the parcels being taken to include any Accessory
Parcels appurtenant to them.
 Therefore, Accessory Parcels should not be assigned a share value.

17. SERVITUDES
 In respect of each condominium unit there are implied servitudes and
others recognized by statute, which are enforceable without any
memorial or notification in the Registers registering condominium property.
 These are rights of use enjoyed by one party over the property of another.
Essential features:
 Servient and Dominant Tenement
 Servient and Dominant Tenement held by different parties
 The owner of the Dominant Tenement is entitled to a right over
the Servient Tenement
 An interest in land in the possession of another
 the servitudes are the right to light, air, support, shelter, access, passage of water,
sewerage, drainage, electricity, cooled air and other services such as telephone, radio
and television, which are rights enjoyed over the property of another. Sec. 13 of Law
No. 11 of 1973, and Sec. 14 as amended by Sec. 9 and 10 of Act No. 45 of 1982.

18. Based on
Share Value
support
light
Servitudes
Common
Elements
Accessory Parcel

19. OWNER’S BUNDLE OF RIGHTS
% joint ownership of
Common elements
based on share values
Determined by Developer
- Sec.13(3) of Act No.39 of
2003 and Sec. 20A of Act No.
45 of 1982
Determined by
Developer
& applicable
Regulations
- Sec 11 of the principle
act amended by Sec. 7
of Act No. 45 of 1982
adding Sec. 11A
(Dominant &
Servient holders)
Sec.13 of the
Principle enactment
Amended by Act No. 9
and 10 of Act No.45 of
1982
Servitudes
Accessory
units
CONDOMINIUM
UNIT

20. …
Residential
and
Commercial
Condominium
Properties

21. EFFECT OF REGISTRATION OF THE CONDOMINIUM
OR SEMI CONDOMINIUM PLAN (SEC. 13 OF ACT NO. 39
OF 2003 AMENDS SEC. 9 OF THE PRINCIPLE ACT)
 Condominium or Semi Condominium Property will become divided into the
condominium units as described in the respective plan of subdivision.
 Mortgages registered on the land before and during construction of the
building will extend to each and every unit thus registered.
 The common elements of the property will be vested with each unit owner
based on the share value assigned to the unit, as tenants in common.
 The owner of each condominium unit along with the percentage of
common elements, will become the absolute owner of the same and will
have the right to sell, lease, mortgage or dispose such unit as freehold
property in the same manner as disposing land subject to any
encumbrances registered on the property.

22. SEMI AND COMPLETED CONDOMINIUM PROPERTIES
 Completed Condominium properties –
 All units have been completed in accordance with the approved
Building Plan and a Certificate of Conformity for the entirety of the
subdivided building has been given.
 Units can be mortgaged as security.
 Semi Condominium properties –
 A partly completed subdivided building which has habitable units.
(Certificate of conformity (COC) issued by the relevant authority
relating to the partly completed condominium property.
 Units can be mortgaged as security as title to the units can be
transferred on Deeds of Transfer.

23. PRE –SELLING CONDOMINIUM UNITS
‘Provisional Condominium Property’
Sec. 3 (b) of Act No. 39 of 2003

24. PROVISIONAL CONDOMINIUM PROPERTY - SEC. 3(B) OF ACT
NO. 39 OF 2003
 Seen only on paper – The Provisional Condominium Plan
 Not “property” in the real sense of the word.
 Legal validity arises from registration of the Provisional Condominium
Plan along with the Deed of Declaration
 Registration gives a “Provisional Condominium Title” to each unit.
 Once registered, the Developer is statutorily bound to provide quarterly
reports in triplicate to the Registrar, GM CMA and to each mortgagee
giving the progress of construction (In the format provided in Sec. 9(c)
Common Amenities Board (Amendment) Act No. 24 of 2003
 This concept was created to enable the pre-selling of units.

25. FORMAT OF THE REPORT TO BE FILED QUARTERLY REGARDING THE PROGRESS
OF A PROVISIONAL CONDOMINIUM PROPERTY

26. - The provisional condominium property will become divided into units as
described in the provisional condominium plan and along with the percentage
of common elements attached to such unit, will be held by the owner of a unit
as an absolute owner of the same.
- Encumbrances - Mortgages registered on the land before and after registration
of the Provisional Condominium Property will extend to each and every unit thus
registered.
- individual agreements of sale executed with prospective purchasers will
become encumbrances on the absolute ownership of the provisional
condominium property.
- The owner (of land / developer) will not have a right to sell, lease, rent or
dispose the land parcel other than by way of mortgage until the property is
registered as a semi or completed condominium property, subject to the right of
a mortgagee of the land to sell and recover its dues.
BUT CAN EXECUTE SECONDARY MORTGAGES
Effect of registration of the Provisional Condominium Plan (Sec. 14 of Act No. 39
of 2003 added as Sec.9A of the principle act)

27. CONSEQUENCES OF ACQUIRING UNITS IN UNREGISTERED
SUBDIVIDED BUILDINGS…..
(EXAMPLE – SALES AGREEMENTS OF UNREGISTERED MULTI
STOREY BUILDINGS)
 Deeds can be executed relating to segments of a building which have not
been registered as a subdivided unit.
 But in the absence of registration of the same as subdivided freehold units,
title that vests with the transferee will only be a co-ownership of the building.
 In Mallika Fernando vs Nagesh Fernando (C.A. 979/79 DC Colombo 16894/L :
March 26, 2001) it was held that non registration of a condominium property
will not invalidate a legally binding Deed of conveyance under which
sections of a building had been gifted to different parties.
 In this case, the plaintiff and defendant had both signed and accepted a
Deed of Gift of the Donor whereby sections of a building, which were not
properly subdivided under a registered condominium plan, had been gifted
to the donees. They were thus considered to be co-owners of the building
and not as owners of individual units.
UNITS IN UNREGISTERED SUBDIVIDED BUILDINGS

28. MANDATORY REGISTRATION
SEC. 4 OF THE ACT NO. 39 OF 2003
- THE OWNER OF ANY LAND UPON WHICH THERE IS A COMPLETED
BUILDING CAPABLE OF BEING SUBDIVIDED AND WHICH HAS BEEN
CERTIFIED BY THE CONDOMINIUM MANAGEMENT AUTHORITY AS
BEING FIT FOR OCCUPATION MUST COMPLY AS FOLLOWS:

30. PHASED CONDOMINIUM PROPERTIES
 In the case of mega projects requiring a number of years to complete, the
Developer undertakes construction in phases, completing and selling the
condominiums in one phase before moving forward to the next phase.
 Expandable condominium projects are yet to be recognized by statute in Sri
Lanka.
 In the USA, phased construction of condominiums are referred to as
“expandable condominium projects” and developer is given a specific time
period to expand the project. If he fails, the reserved rights would expire.
 In the USA, expansion is done as follows –
 By a series of amendments to the original Master Deed each adding additional
land to the original condominium property.
 By several Master deeds for each phase and thereafter consolidating under a
Consolidated Master Deed.
 How can a phased condominium property be legally established in Sri
Lanka?

31.  Advantages in registering a Provisional Condominium Property?
 Is it possible to take a Provisional Condominium unit as a
mortgage?
 What type of a security can a bank take when giving a loan to
the purchaser of Provisional Condominium unit?
 Why do banks execute Tripartite Agreements ?
 Why are developers reluctant to register Provisional
Condominium Properties?

32.  “Move to What Moves You” -Halstead Property.
 “Your Gateway to a Richer Life” -Town and
Country Real Estate, The Hamptons.
 “Where Dreams Come Home” -Coldwell Banker.
 “Find Your Nook” -Nooklyn.com.