What restrictive covenants mean for you and your property
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.