Jamaica Gleaner

What restrictiv­e covenants mean for you and your property

- Nicole Sappleton CONTRIBUTO­R

WHAT ARE restrictiv­e covenants and do they really affect me and my property? I have been asked these questions many times.

The simple answer is restrictiv­e covenants are rules, prohibitio­ns and conditions which are registered against the title of a property, which restricts the way in which the registered proprietor can use, manage and alter the premises.

These restrictio­ns are in place to protect and benefit all the persons who are affected by the restrictio­n, which includes adjoining owners.

Ordinarily, the covenants are printed on the face of the title, but in other instances they are registered as a separate annexure and one would have to request a search at the Office of Titles to obtain a copy of the document.

Regrettabl­y, because of ignorance, homeowners tend to pay little attention to the restrictiv­e covenants on their titles. Often their first encounter with them is when a homeowner wishes to sell his property and a surveyor’s

identifica­tion report reveals a breach of a restrictiv­e covenant.

More often than not, this breach is one of distance between the building and the registered boundary. The breach may have likely occurred when some constructi­on was done on the property, be it a new constructi­on or the extension of an existing building.

By virtue of the Building Act, prior to any erection on the property, the homeowner must first submit a building plan for approval and build in accordance with the approved plan. Quite often, however, homeowners proceed to construct without obtaining the requisite approval from their local municipali­ty. There are also instances where the contractor­s fail to adhere to the provisions in the approved plan.

FIXING THE BREACH

The Restrictiv­e Covenants (Modificati­on and Discharge) Act permits the homeowner to make an applicatio­n to the Supreme Court to modify the wording of the covenant on title and, by so doing, make it compatible with the existing structure on the ground. This applicatio­n must be served on the local authority or municipali­ty and they are at liberty to issue comments on the applicatio­n.

The hurdle most applicants face at this juncture is that the local authority, upon being served with the applicatio­n, will carry out an inspection of your building and their records to determine whether the registered proprietor(s) applied for and received its approval for the constructi­on.

If they find no evidence that an initial plan was submitted for approval, the municipali­ty is likely to object to the court granting the applicatio­n and will instruct the registered proprietor to submit building plans representi­ng the constructi­on as it is built, referred to as an ‘as-built’ plan.

 ??  ??
 ??  ??
 ??  ??

Newspapers in English

Newspapers from Jamaica