Headnote
The Appellants own individual units in a double storey commercial building under the Common Leasehold Schemes Act of 1994 now Chapter 208 of the Laws of Zambia. On 7 July 2011 the Appellants commenced proceedings in the High Court, seeking to restrict the 1st Respondent from disposing of a portion of land that was created out of the common area or space located at the back of the commercial building, without their consent.
In its judgment, the High Court found that the 1st Respondent could not be restricted in the manner canvassed by the Appellants, as she was the registered owner of the portion of the land in contention. The Appellants appealed.
Held
1. Order 6 rule 1 of the High Court Rules, Chapter 27 of the Laws of Zambia states in mandatory terms, that any matter which under any written law or rules may be disposed of in chambers shall be commenced by originating summons, while Order 30 rule 11(c) of the same rules goes further to set out matters that may be disposed of in chambers and thus amenable to commencement by originating summons.
2. The relief that the Appellants were seeking as unit holders in the court below were anchored on the interpretation of their perceived rights conferred upon them by the Common Leasehold Act. The determination of the question was anchored on the construction of the relevant provisions of the Common Leasehold Act. Therefore, in terms of Order 30 rule 11 of the High Court Rules the nature of the matter was fit for determination in chambers and according to Order 6 rule 1, the proper mode of commencing such proceedings is by originating summons.
3. Where property is held under a common leasehold scheme, each unit holder has, pursuant to section 7(1)a of the Common Leasehold Act, a defined interest, expressed in percentage terms in the common property. This interest is attached as an appurtenant easement to the particular unit.
4. In terms of section 20c of the Common Leasehold Act, the unit holders may by unanimous resolution elect to vary or adjust their respective unit interests in the common property and such specified variation is subject to registration with the Registrar. Section 7(3)(a)b of the Common Leasehold Act also provides that the only share in the common property that may be independently disposed of by a unit holder, is that attached to the particular unit.
5. Upon converting the property from leasehold to common leasehold tenure, the provisions of the Common Leasehold Act automatically kicked in. In terms of section 2 of that Act, the common parts or spaces known as common property, by operation of law attached as an appurtenant easement to the respective units, in shares proportional to the unit entitlement.
6. When the 1st Respondent disposed of all the units by way of sale to the Appellants, by operation of the law, she also divested herself of all interest in the common property which attached to the respective units as an appurtenant easement and was held by the unit holders of the units, as tenants in common, in shares proportional to their respective unit
entitlements. Any further variation or adjustment of the unit interest in the common property could thereafter only be effected in compliance with the requirements of section 20 of the Common Leasehold Act.
7. Appeal allowed.
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a Section 7(1) of the Common Leasehold Act provides that:
7. (1) The common property under a common leasehold scheme shall be held by the unit-holders of the units as tenants in common in shares proportional to their respective unit entitlements.
b Section 7(3)(a) provides that:
7. (3) Except where a common leasehold scheme is varied in accordance with this Act-
(a) no share in the common property may be disposed of except as appurtenant to the unit of the unit holder concerned.
c Section 20(1) provides that:
20. (1) On the passing of a unanimous resolution of the unit holders under a common leasehold scheme approving a specified variation to the scheme, together with, where the scheme is a phased development the agreement in writing of the Registered Proprietor of the remainder and of each party to a registered contract for the purchase on completion of an uncompleted unit, the body corporate shall lodge an application for variation.
