Modification of restrictive covenant post COVID–19

LIFE FOR many of us has changed beyond recognition, and one of the biggest changes has been in how court matters are conducted. Applications for modification of restrictive covenants, historically, are done face to face; however, in the midst of the pandemic, government of Jamaica instituted new systems and protocols which resulted in hearings which are now held remotely via teleconference or videoconference.

To the average homeowner, a restrictive covenant i s still a mystery. Persons typically learn of them when they are buying property through a mortgage, as a surveyor’s identification report is required. Essentially, these covenants are put in place to protect all the persons who are affected by the land. There are two types of covenants – those that provide a benefit to the landowner, and those that are a burden to the landowner.

The need for modification usually arises where breaches of the covenants are disclosed by the survey report. Modification of covenants also arise where the landowner is seeking to build on land or change the current purposes for which the land can be utilised.

If the surveyor’s report shows that there is a breach on the property which can be remedied through the court, the owner is required to apply to the court to have the covenant modified. Where a new building is contemplated there may be no report, but an application will need to be filed in court and supported by proof of the application for building approval.

The applicant will retain the services of an attorney, who then prepares the fixeddate claim form and affidavit in support and files the said documents at the Supreme Court. Historically, the attorney would attend court on two occasions – at the first hearing and at the final hearing, at which point, after consultation with the local authorities, the judge will grant the first hearing order. However, due to the COVID-19 pandemic, all the hearings are now held virtually.

We now make some points about what court applications such as modification of restrictive covenants may look like in the post COVID-19 era.

APPLICATIONS PROCESSED FASTER

The process, from filing your application to getting a hearing date for your matter, is being done faster; and the expectation is that this will continue to improve. However, even though the dates are issued earlier, you are still required to have both the first hearing and a final hearing. Attorneys are now required to file an affidavit of service to show proof of service on the local municipality (parish council) and NEPA. Both agencies must be duly served in order for the judge to grant the first hearing orders. Upon receiving the fixed-date claim form and affidavit, the local authority will issue their comments. If the modification you are seeking to the covenant (s) is allowable, then the local authorities will issue what is known as a ‘no objection’ letter.

The applicant will not receive a ‘no objection’ letter if his or her application is not in order. A ‘no objection’ letter paves the way for the granting of the first hearing orders by the court. Once the applicant shows evidence that the first hearing orders have been complied with, the court then issues a date for final hearing. At the time of the hearing, the judge would inspect the title before granting the order.

Since COVID-19, attorneys are now required to file a certified copy of the title, therefore allowing applicants some time to provide the title, where, for whatever reason, the title is not immediately available. It therefore means that the matter does not have to be unduly delayed because the applicant cannot provide his original duplicate certificate of title for the court’s inspection. If there is a mortgage on the title, the consent of mortgagee still needs to be filed in court prior to the date for final hearing.

The duplicate certificate is required at the time the Registrar of Titles endorses the order on the title. If there is a mortgage on the title, then it will need to be obtained from the mortgagee, along with their consent for the order to be endorsed.

COURTROOMS WILL BECOME SERVICE LOUNGES

Before COVID-19, applications for modification were done in the judge’s chambers and would usually take up a lot of time, mostly because attorneys would have to sit and wait until their matters are called. Now, the applications are heard via telephone conference and are done a lot faster. Where the client needs to be present for the hearing, he is logging on to Zoom or attending his lawyer’s office and by so doing, escapes the anxieties often associated with attending court.

The pandemic has enabled attorneys to work together with the court staff to process clients’ matters faster, whereas attorneys are able to send documents such as ‘no objection’ letters via email to the clerk of court, if it is that the court did not receive its copy in time for the hearing. The expectation is that with the new buy-in to the benefits of different forms of technology to assist in the administration of the courts, this corporation will only accelerate. Indeed, before too long e-filing in our courts may become the norm in Jamaica.

REGULATORY BODIES

Traditionally, the applicant would need to receive an approval, usually in the form of a ‘no objection’ letter from the local authority, before the court will grant the order on application for modification of covenant. Upon being served with the application, the local authorities would carry out an inspection of the property in question. Once the inspection is completed, the governing body would meet to decide whether to support the application. Most municipalities meet once per month to vet and grant approvals.

Now it appears that inspections are taking a longer time to be completed, and by the time the local authorities meet to issue an approval, the date for first hearing has often passed. Regrettably, this would cause the matter to be adjourned to a later date, to facilitate the court receiving the response from the local authority, especially the municipality.

In light of the changes in how court matters are heard due to the onset of COVID-19, it is our recommendation that the regulatory bodies consider meeting twice per month, virtually, to facilitate the increase in applications for modification of restrictive covenants. Undoubtedly, the pace of construction in the Corporate Area alone makes it clear that there will be more applications. The court’s process has improved (though we still look forward to more timely dates for final hearing). It is also time for the local authorities to also revisit their processes to adequately respond. Only then will landowners be able to move forward smoothly with modification of covenants on their titles.