Title Nature of Condominium

All Authors Me Me Linn

Local Publication
Publication Type

Publisher
(Journal name,
Mandalay University Research Journal
issue no., page no
etc.)
A condominium is form of real property ownership in which an individual owns a
unit exclusively and owns common elements jointly with all other unit owners in
the condominium. Condominium ownership includes ownership of common land,
common facilities and common equipment are the integral and inseparable parts
of the unit. In this regard, some of the countries in ASEAN region promulgate the
specific law for condominium because of the growth of population and
Abstract development of the urban areas in their countries. The legal owners have the
rights of common land, common facilities and common equipment as common
ownership according to their Laws. In the transaction of the process of real estate
ownership, there are various issues on the complexity of formation process, real
estate market, exclusive rights and common rights. Therefore, developed
countries should enact the Condominium Law for the protection of the rights of
the unit owners in Condominium.
Condominium, Unit, Unit Owner, Condominium Ownership, Exclusive Rights,
Keywords
Common Rights

Citation

2016
Issue Date
Mandalay University Research Journal

Nature of Condominium
Me Me Linn 1
Abstract
A condominium is form of real property ownership in which an individual owns a unit
exclusively and owns common elements jointly with all other unit owners in the
condominium. Condominium ownership includes ownership of common land, common
facilities and common equipment are the integral and inseparable parts of the unit. In this
regard, some of the countries in ASEAN region promulgate the specific law for
condominium because of the growth of population and development of the urban areas in
their countries. The legal owners have the rights of common land, common facilities and
common equipment as common ownership according to their Laws. In the transaction of
the process of real estate ownership, there are various issues on the complexity of
formation process, real estate market, exclusive rights and common rights. Therefore,
developed countries should enact the Condominium Law for the protection of the rights
of the unit owners in Condominium.
Key words: Condominium, Unit, Unit Owner, Condominium Ownership, Exclusive Rights,
Common Rights

Introduction
Condominiums are a unique concept in the scope of Property Law. It generally
refers to a system of separate ownership of parts of a building. It divides the building
into two parts which are “individual units” and “common property”; and common
parts and facilities of the building. Each individual unit owner is the absolute owner
of his particular unit and also the owner of common property in a fixed ratio
according to the value of the individual unit. Since the beginning of condominium
building, the juristic condominium body and legal entity are formed. Then, the
individual purchasers of each individual unit have to constitute for administration,
control and maintenance of the common property. In the common-law history of real
property, it permits a system of ownership of horizontally stacked or divided spaces
and allows the ownership of apartments available of the population. The key
characteristic that distinguishes the condominium from other forms of property
ownership is that a unit owner entitles to an undivided interest together with other unit
owners in the “common elements”. As a form of real property ownership,
condominiums require a comprehensive allocation of rights and responsibilities

1
Lecturer, Dr, Department of Law, University of Mandalay
2 Mandalay University Research Journal

regarding property use, maintenance, management, and costs; and regulation of

human behavior duet to the sharing of common areas and close proximity of living.

Materials, Methods
This paper analyzes the domestic legal systems of some ASEAN countries to
address the issue of the ownership on the real estate of Condominium property. It
observes how to balance the protection of individual rights of the unit owner on the
unit and the collective rights on the common property of the condominium. This paper
uses the literature reviews and analytical study on the Condominium.

Findings
As a form of real property ownership, condominiums require a comprehensive
allocation of rights and responsibilities regarding property use, maintenance,
management, and costs; and regulation of human behavior duet to the sharing of
common areas and close proximity of living. Condominium law becomes one of the
most burgeoning areas of law for the most urbanized areas of the nation. By the
growth of population and development of the urban areas in a country, the unit
owners face the ownership and management problems although they have better
rights than the owners of high-storeyed building. This paper argues the concept of
condominium and especially details the major issues occurred in condominium law
and practice.

Discussion
Historical Development of Condominium
Historically, the sales of parts of buildings first occurred during the eras of the
Babylonians, Egyptians, Greeks and Venetians in the First Dynasty, nearly two
centuries before the birth of Christ. The concept of selling parts of a building was very
popular in Europe during the middle ages due to an acute shortage of housing, hence
creating a need for a more efficient use of available land. This led to individual
ownership of parts of a building and became widespread in the French cities of
Nantes, Saint Malo, Caen, Rouen, Rennes, and Grenoble. The condominium concept
was also popularly exercised in Latin America.
The condominium concept first spread from Europe to South America and in
1928. Brazil became the first country to pass a law permitting the sale of "horizontal
Mandalay University Research Journal 3

property" meaning condominiums followed by Chile in 1937, Argentina, Uruguay in

1948, Cuba in 1952, Venezuela in 1958 and Guatemala in 1959.
The condominium statutory of the United States of America came, not from
Europe, but from Puerto Rico where large populations lived and continued to live in
limited spaces. The first condominium law passed in the United States was in the
Commonwealth of Puerto Rico in 1958. This is due to an allowance for room, for
expansion, except upwards, and is limited by proximity to the sea. In 1958, Puerto
Rico, the first United States jurisdiction then enacted a condominium statute,
providing a solution to land scarcity by incorporated a condominium concept into law
called Horizontal Property Act of 1958. Puerto Rico was the first North American
jurisdiction to promulgate a statute on apartment ownership or condominium in 1958.
By 1970, the condominium concept had been incorporated into law in almost
every state in the United States and provinces in Canada. For Southeast Asian
countries, the Philippines, a United States’ commonwealth, adopted the principle of
condominium law from United States in 1966. In 1967, Singapore adopted the Land
Title (Strata) Act, in 1979, Thailand adopted the Condominium Act, in 2007,
Malaysia adopted the Building and Common Property (maintenance and
management) Act and in 2016, Myanmar adopted the Condominium Law.

Terminology of Condominium
The origin of the word condominium can be traced back to its Latin meaning
of “dominion with others” or “shared dominion”; in other words, joint rule over a
territory. Condominium owners jointly own the common property of their
developments including parks and parking spaces.
Condominium is derived from the Latin con, or “with,” and dominium, or
“control.” Essentially, condominium means control of a piece of property with other
individuals.
Condominium is a multilevel building which is built in an area that is divided
into sections which are structured functionally, whether horizontally or vertically that
constitutes as units in which each can be owned and used separately, mainly for
housing complemented with common equipment, common facility and common land.
According to above definitions, Condominium consists of two parts. The first
part is a collection of private dwellings called units. The second part consists of the
4 Mandalay University Research Journal

common elements of the building. Common elements may also include structural
elements and mechanical and electrical services.
A condominium unit is often legally defined as a space of air or three
dimension areas located within the walls, roof and floor, and the ceiling of a
condominium structure.
Accessory Unit means a unit, whether or not part of a building, that is
designed for use with any principal unit, whether as a garden, garage, car parking
space, storage space, swimming pool, laundry, stairway, passage or any other such
purpose, and that is shown on a strata plan as an accessory unit.
Unit owner means the person, or combination of persons, who hold legal title
to a unit. A mortgagee or a trustee designated under a deed of trust, as such, may not
be deemed a unit owner.
Condominium unit co-owners have exclusive ownership rights to their unit
and the right to share the common elements of the condominium development with
other co-owners.
Generally, the term of unit owner is owner of condominium unit which the
person owning jointly or in common interest including the exercise of voting rights, a
lessee of a unit shall be deemed to be the unit owner.
The common elements include the land on which the building stands, the
lobby, public halls, access roads and parking areas; and the electrical, mechanical,
heating and air conditioning systems that service the building.
Common land is land used under an undivided common right and a piece of
land used under an undivided common right, which is an apartment building over it,
determined in accordance with the building license. By this concept, all strata title
holders have their share ownership of the land which is calculated based on the
proportional comparative value of each of the area of the strata title unit but also on
the share ownership of common equipment and common facility.
Common equipment means a part of condominium that is inseparably owned
for joint use in one integrated function with condominium units. The examples of this
are foundation, column, wall, floor, block, roof, stair, lift, pipes, electricity system,
gas, and telecommunication.
Common facilities mean a property that is not part of condominium but
inseparably and jointly owned for joint use. The examples of this are meeting room,
park, landscaping, social building, religious building, parking space, and playground,
Mandalay University Research Journal 5

boat docks, clubhouses, gardens, tennis courts and swimming pools, separate or
integrated parking space with condominium building structure.
Condominium Corporation means a condominium or strata corporation
established under provincial legislation.
Developer means a person who undertakes to develop a real estate
condominium project, including a person who succeeds to the interest of the
developer by acquiring a controlling interest in the developer or in the project.

Types of Condominium
The types of condominium can be classified into two basic categories:
leasehold and freehold.
Leasehold Condominium
A Leasehold Condominium is created on lands for which the declarant
possesses only a leasehold interest in title, and has consent of the holder of actual title
to develop the condominium on the lands.
Leasehold Condominium is like a traditional condominium except that the
condominium is on land which is leased by the developer as opposed to being owned
by the developer. In order to qualify as a Leasehold Condominium, the declarant must
possess a leasehold interest in land that covers the whole of the proposed
condominium property, and may refer to as unit “owners” they really also possess
only a leasehold interest in their units. The lessor (owner) of the lands must sign the
declaration as well as the declarant (lessee), and the lessor’s consent will later be
required if there are to be any changes made to the declaration after registration. The
purpose of the Leasehold Condominium is land use and revenue making for
institutions, such as hospitals and universities that cannot sell their lands.

Freehold Condominium
The term “freehold” is often used to suggest some special kind of
condominium in which one owns more of the property than in another kind of
condominium. A freehold condominium is simply one where the title held by the
declarant, and being conveyed to the unit owners, is not leasehold. The condominium
is created on lands for which the declarant holds title and can convey the same to the
purchasers of units in the condominium. This means that the owner actually owns the
unit and does not merely have a leasehold interest in it.
6 Mandalay University Research Journal

There are four sub-categories of freehold condominium, such as Standard,

Phased, Common Elements and Vacant Land Condominiums.

Requirements for Construction of Condominium

The requirements for construction of condominium include;
(i) administrative requirements,
(ii) technical requirements and
(iii) ecological requirements.
(i) Administrative requirements refer to required licenses to construct a
condominium such the status of land, license to build, and land use license. The
application for land use license is submitted by attaching the following requirements:
Certificate of right of land; Letter of information of district/city’s planning; Site plan;
Architecture plan comprising the layout, look, and division of condominium
describing clear horizontal and vertical boundaries; Architecture plan with its
calculation; Plan layout describing the common equipment, common facility and
common land; and Public utility plan and its installation including its equipments.
(ii) Technical requirements consist of:
(a) Building structure that includes location use requirement and intensity and
building architecture. Location use means types of function or combination of
function of condominium that may be built on certain location or area. Where, a
building intensity means technical requirement on density and building height of
condominium that is required on certain location or area, that includes coefficient of
building foundation, coefficient of building floor, and total of building’s floors.
(b) Building reliability that includes safety, health, comfort, and practical
requirement. Safety requirement means the capacity of condominium to support the
weigh and to avoid and to manage fire and lightning potential event. Health
requirement includes light, airing, sanitation and use of building materials system.
Comfort requirement includes moving space; inter relationship between spaces, the
air condition, view, and noisy rate. Practical requirement includes the practical
relation to, from, and in the condominium including its facilities.
(iii) Ecological requirements include the synchronization and harmony of
environment function. This means the synchronization of made-up environment,
natural environment and social culture, including the cultural values that need to be
preserved. The construction of condominium that has important impact to the
Mandalay University Research Journal 7

environment must be supplied with the environmental impact analysis according to

the prevailing laws.
In constructing a condominium, the developer has to separate the
condominium with the condominium unit, common equipment, common facility, and
common land. Common facility will become common equipment if it is built as part
of condominium building. The separation as previously mentioned will make clear the
following:
a. Boundaries of condominium unit that is separately used for each owner;
b. Boundaries and detail of common equipment and common facility that
become the right of each condominium unit; and
c. Boundaries and detail of common land and the scale of part that become
the right of each condominium unit.

Advantages of Condominium
Condominiums are popping up everywhere these days. Home buyers are now
seeking the conveniences of condominium living and moving from single detached
housing towards the condominium. There are several factors that lead to the
popularity and success of condominium living in countries throughout the world.
Firstly, many people like to live in condominiums as they are attracted to the idea of
owning a property at a fairly inexpensive price enhanced by a secure and
uncomplicated lifestyle. People strive to reduce travel time and keep the benefits of
being right in the middle of the busy city or near commercial areas where facilities for
employment, education, recreation, and public services already exist. Secondly, there
is the desire for home ownership rather the tenancy. Most people prefer to own their
own home, rather than rent which is one of the reasons condominium consumers
would rather pay monthly mortgage installments. It ensures that their monthly
payments go towards an eventual asset rather than monthly rental for apartment
living.
Thirdly, there is the low cost of using facilities provided in condominiums
such as swimming pools, fitness rooms, saunas, clubhouses, and the like. Some
condominiums have retail units designed for commercial purposes such as a mini-
marts, bookstores, beauty salons, and restaurants providing extensive convenience and
allowing the condominium resident to stay at home rather than leave the
condominium compound. Fourthly, there is the element of security with neighbors
8 Mandalay University Research Journal

above and below their condominium unit as well as the freedom to leave home for
months without worrying about the house-break-ins, damage or theft. Finally, there is
the issue of condominium unit owners maintaining their own unit. The responsibility
of cleaning, maintaining, repairing the garden, the hallways, the lobby, the facilities,
and the like are eliminated because these duties are part of the condominium body
management’s responsibilities.

Legal Structure of Condominium

According to the historical background of condominiums, during the middle
ages, the co-ownership principle was applied to condominium living created many
disputes between unit owners as the co-ownership principle lacked clear-cut rules
governing the repair and maintenance of common areas. The condominium law
created an entirely new system of separate ownership of parts of a building and the
principle of managing the common property by establishing a juristic condominium
body; a legal entity set up for the purpose of administration, control and maintenance
of the common property areas. It eventuated in order to prevent the disputes as seen in
the middle-ages and to regulate, in great detail, the community relations of a large
group of people living in condominiums.

Condominium Ownership in Myanmar

Condominium means a single real-estate unit in a multi-unit development in
which a person has both separate ownership of a unit and a common interest, along
with the development's other owners, in the common areas.
A recent trend in today's commercial real estate market is the creation of high-
storeyed buildings i.e., the dedication of commercial buildings as condominiums. All
condominium projects have Planning Permit, Building Completion Certificate,
Ownership Books, Bylaws and the Sale Contracts. In order that the buyer of
condominium unit entitles to the validity of ownership, they can rely on the main law,
Condominium Law 2016, as well as the relevant laws such as the Transfer of Property
Act, 1882, the Urban Rent Control Act, 1960 and the Transfer of Immovable Property
(Restriction) Law, 1987. The Condominium Law has the provisions to solve the
problems of ownership, common property rights and inadequacy of housing for an
increasing population.
Mandalay University Research Journal 9

The Condominium Law in Myanmar is enacted in 2016 by Notification No.

24/2016 with the aims to support urban and regional development; to create
community housing in order to provide adequate of housing for an increasing
population in the urban areas; and to establish a legal framework in which
condominium apartments. There are (11) Chapters and (39) Sections. It describes the
definitions, objectives, formation of management committee and its duties and
powers, functions and duties of the department, registration and establishment of a
condominium, and rights and obligations of the developers. Especially it concerns
with rights and obligations of the unit owner.

Conclusion
As there are many advantages of a condominium structure in comparing with
other types of housing, including leases and cooperatives, many people like to live in
condominiums for the idea of owing the property at a fairly inexpensive price
enhanced by a secure and uncomplicated lifestyle. Condominium ownership includes
the ownership of common land, common equipment and common facilities which all
are the integral and inseparable parts of the unit. Condominiums have also gained
popularity when the cost of urban land has risen disproportionately to the cost of
building construction, generally as a result of increases in population density resulting
from migration to cities.
One or more of the various types of condominium, or strategies for combining
condominium types, may apply more appropriately to one project or land than another
depending on the interests of the developer and proposed uses of the property, but
almost any land use can accommodate and likely be benefited in some way by the
application or one or more of the condominium concepts in the Act.
Condominiums are completely creatures of statute and condominium
association is a separate legal character and entity from the owners. Many
condominiums have strict rules concerning the alteration of the unit space or its
appearance. There is currently Condominium Law in Myanmar and it needs to
encourage the effective legal mechanisms. As a result, both of the unit owners and
developers in Myanmar are being entitled to the interests of real estate property.
10 Mandalay University Research Journal

Acknowledgement
I would like to express my sincere thanks to Professor Dr. Thwin Pa Pa (Head of the
Department of Law), University of Mandalay for her encouragement to do this paper. My heartfelt
thanks also go to everyone who gives me valuable suggestions and helps me kindly during the writing
of this paper.

References
Bryan A. Garner, Black's Law Dictionary, Seventh Edition, 2000
Building and Common Property (Maintenance and Management) Act 2007, Malaysia
Building Maintenance and Strata Management Act 2008, Singapore
C.Van der Merwe, The Distribution of Ownership in an Apartment Ownership or Condominium
Scheme, 2004
Claudine M. Cooper, Maintaining Consistent Quality in Resort Condominiums, the Graduate School
University of Wisconsin-Stout, 2007
Condominium Act 2008, Thailand
Cooperative and Condominium Conversion Handbook, State of New York, Office of the Attorney
General, 2008
Donna S. Bennett, Condominium Homeownership in the United States: A Selected Annotated
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Michael H. Clifton, About Condo, Types of condominium, Ontario, 2007
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