You finally buy your dream home after years of saving or taking out a mortgage. You have the title. The house is yours. The compound is yours.
Then you decide to put up a car shed before the rainy season, only to be told you need approval. You want to enclose the veranda and create extra space for the children. Again, you are told it is not allowed.
You want to repaint the house because you are tired of the colour you inherited from the developer. There are rules for that, too.
Restrictions also apply on the number of cars you can park outside, pets, construction hours, short-term rentals such as Airbnb, running a business from home and even how domestic workers access the estate.
Other developments regulate satellite dishes, solar panels, generators, water tanks and changes to the external appearance of homes.
This is becoming a familiar reality for homeowners in Kenya’s gated estates and apartment developments, where the promise of security, controlled access and landscaped surroundings comes with rules.
The restrictions can be as mundane as where visitors park and when construction work can be done, or as consequential as whether you can extend your house, alter its exterior or use it as a short-term rental.
And this is where the relationship between homeowners and estate management can become complicated. If you bought a house for Sh15 million, Sh30 million or even Sh50 million, how much control should someone else have over what you do with it?
On the other hand, what happens to the value of a development if every homeowner decides to do whatever they want?
“If you buy a house in a gated community, you are also choosing to be part of a particular neighbourhood and way of living,” says Prudence Mugambi, an advocate and sectional property law expert.
That, she says, is the trade-off.
However, the legal position is more nuanced than simply saying management is in charge.
“The balance is not between ownership and management but between individual property rights and legitimate collective interests. A good estate rule should protect something that genuinely needs protecting. It should not exist simply because management wants to control what homeowners do with their property,” Ms Mugambi says.
You own the house, but not always everything around it
The first point to understand is that not all gated developments operate under the same ownership structure.
In an ordinary gated community, a homeowner may own an individual parcel of land, subject to conditions, restrictions and encumbrances attached to the title, as well as restrictive covenants and agreements governing the estate.
In a sectional development, such as an apartment block, ownership is more intertwined. A buyer owns a registered sectional unit while also holding a proportionate share in the common property.
“The management corporation is constituted by the homeowners and is responsible for the control, management and administration of the common property and for enforcing the applicable by-laws,” Ms Mugambi says.
This does not mean management owns an individual’s apartment or house. The homeowner remains the proprietor. That distinction becomes important when an owner wants to make changes.
“In a sectional development, the prescribed by-laws expressly allow an owner to paint, wallpaper or decorate the inner surface of their unit without the Corporation’s consent, provided the work does not unreasonably damage common property,” she says. Structural, mechanical and electrical alterations, however, require prior written approval.
The growing list of estate rules
Restrictions vary from one development to another, but some have become common across gated communities and apartment developments.
Parking rules may determine where residents and visitors can leave their vehicles. Other estates regulate short-term letting, including Airbnb-style rentals, arguing that frequent guest turnover can affect security.
There may also be rules on hanging laundry on balconies, garbage disposal, use of common areas, obstruction of corridors, and installation of satellite dishes, water tanks and generators.
Ms Mugambi says some disputes she has encountered involve “homeowners putting up carports or other structures, enclosing verandas or balconies, extending buildings, changing the external appearance of their homes, or making landscaping and boundary changes without approval.”
“A homeowner can, in certain circumstances, be prevented from making changes to a property even where they have fully purchased and registered it,” Ms Mugambi adds.
Management power
The power to regulate, Ms Mugambi says, is not the same as having unlimited authority. Where estate rules require prior approval, management is entitled to consider a request. But “the existence of an approval requirement should not be understood as giving management an unlimited discretion to refuse an alteration without justification,” Ms Mugambi says.
In sectional developments, consent for structural, mechanical or electrical alterations “shall not be unreasonably withheld.” Management should be able to demonstrate a legitimate concern.
These could include structural integrity, fire risk, interference with other residents, damage to common property, insurance implications or an alteration that fundamentally changes the appearance of the development.
The same balance between collective interests and individual rights can arise over security.
How courts have ruled
In Thome V estate, a group of 14 homeowners sued the Residents Welfare Association after it erected gates and barriers on public roads without consulting homeowners who had opted not to become members of the association.
The association had demanded that landowners join by paying a one-off Sh65,000 membership fee and Sh4,000 monthly for security. In 2016, it erected gates and spikes, with homeowners who had opted not to join allegedly being denied access through the gates.
In May 2024, the court found that the association’s failure to give sufficient notice before putting up the gates and barriers amounted to an unfair and illegal practice. It also found that the failure to demonstrate how the Sh65,000 membership fee and Sh4,000 monthly security charge had been arrived at amounted to unfair administrative action.
The court ordered that the gates and barriers be removed, subject to obtaining City Hall approval and the consent of the majority of Thome V landowners. The matter was to proceed through mediation, which has continued since 2024.
Balancing acts
Consequently, personal preference is not enough.
“Management is there to regulate the development, not to exercise personal preferences over homeowners. A refusal should be based on a legitimate concern recognised by the governing rules,” Ms Mugambi says.
This is one of the biggest balancing acts for developers and estate managers.
Another case involved Sunning Hills Apartments in Lavington, Nairobi.
Vincent A. Chokaa and Broad Gas Petroleum Ltd, who bought two units in the development between 2010 and 2013, challenged the management arrangements at the apartments. They argued that the developer had failed to incorporate a management company and allocate shares to apartment owners as required under their purchase agreements.
Instead, an organisation initially identified as Odhiambo & Others was formed and began collecting service charges before becoming the Sunning Hills Apartments Welfare Association. The association later appointed Heritage Property Consultants Ltd to manage the property, a move contested by some apartment owners.
The dispute also involved parking. In 2015, the association and its officials rearranged the earlier parking allocations, with Chokaa and Broad Gas Petroleum being assigned bays farther from their apartments.
In 2021, the court rejected the request for incorporation of another management company, holding that one was already in existence as provided for in the purchase agreement. However, it ordered that the parking bays initially allocated to the two plaintiffs, which were near their apartments, be returned to them. It also ordered an Annual General Meeting for the election of new directors of the management company.
The advocate says excessive control can make homeowners feel like tenants in homes they legally own.
“The fact that someone lives within a managed development does not mean that they surrender all autonomy over their home,” Ms Mugambi says.
When homeowners break rules
When homeowners proceed with alterations without approval, management can enforce the applicable rules, Ms Mugambi says, although it cannot simply take the law into its own hands.
In sectional developments, disputes over breaches of by-laws can be referred to an Internal Dispute Resolution Committee, which can issue orders aimed at securing compliance. Where necessary, enforcement can ultimately move to court.
For ordinary gated communities, remedies depend on the homeowners’ association constitution, restrictive covenants and contractual agreements governing the estate.
Homeowners can also challenge rules they believe are excessive, arbitrarily applied or outside the authority of the management body.
“Estate rules are not above the law,” Ms Mugambi says.
Read the rules before buying
Prospective buyers should look beyond the title when purchasing property in a gated development.
“I would advise a prospective purchaser not to stop at the title,” Ms Mugambi says.
Buyers should examine sale agreements, restrictive covenants, homeowners’ association constitutions, estate by-laws, management agreements and, in sectional developments, the sectional plan.
“A purchaser may have a perfectly valid title to a house and land, but the estate rules may regulate whether they can put up a carport, extend the house, alter the exterior, change the landscaping, keep certain animals or use the property for short-term letting,” she says. Buying into a gated community is therefore different from simply buying a standalone home.
“There has to be room for an owner to enjoy and use their property as an owner. At the same time, ownership within a gated community comes with a recognition that certain rules are necessary because the actions of one homeowner can affect the security, appearance, infrastructure and enjoyment of others,” Ms Mugambi says.
