Tuesday, May 20, 2008

Restrictive Covenants - Jamaican Examples

Some people view the concept of restrictive covenants as somewhat perplexing and depending on the issues surrounding a particular case the issue can seem obscure. One thing that is important to understand is that adjoining Lots A and B will be subject to the same list of restrictive covenants if their homes form part of a building scheme. Since those covenants restrict both lot owners from doing certain things which will affect the land each lot owner similarly benefits from the covenant on his neighbour's land.

For those buying or selling real estate in Jamaica, let us look at some practical and common examples.

User

“The building on the said land shall not at any time be used for the purposes of a club school chapel or church and no trade or business whatsoever shall be carried on upon the said land or any part thereof and the said buildings shall be used for the purposes of a private dwelling house only.”

This kind of covenant addresses the use of the property. In many cases proprietors and/or their tenants occupy premises and conduct business in blatant breach of this covenant. As I had stated in my previous post in the event of an actual or anticipated breach of these covenants the adjoining owner for whose benefit the covenant has been imposed can seek legal redress. Adjoining neighbours who ignore this covenant often do so at their peril, as pretty soon the breaches may be copied by other proprietors and then the character of the neighbourhood will start to change, seeming more commercial than residential.

Boundaries

“No building or erection on the said land shall be nearer than Eight Feet (8ft) to the boundary of the said land on which the building fronts or nearer than Five Feet (5 ft) from any other boundary "

This kind of covenant is akin to a setback or the distance from which a building is set back from a street, a road or a river. In addition to these covenants, development orders also provide for setbacks. There are reasons for them such as to allow for privacy between neighbours, to reduce fire hazards, to allow for the free flow of storm water and to allow access to public utilities. Once again unfortunately in many cases breaches of these usually precede any consideration of enforcement of the covenant.

Subdivision

“There shall be no sub-division of the land above-described. "

This is often the first covenant shown on the title. Sometimes the wording includes "further sub-division". Modification is often sought for this covenant especially if the subject property is going to be used for the contruction of apartments or townhouses. Sometimes too, owners of large tracts of land cut them up into smaller lots for sale and subdivision is required in order for titles (usually referred to as splinter titles) to be issued for each individual lot. In this case in addition to the modification of the covenant, subdivision approval must be obtained.

Neighbours and purchasers must be vigilant. It is important to note that in many cases modification is sought in order to remedy an existing breach. The court will order that persons who are entitled to the benefit of the restriction must be served with notices of the application to modify or discharge the covenants. In addition, the applicant must advertise the notice in the daily newspaper. Persons who find the application objectionable must OBJECT!

As for purchasers, you must be mindful that the vendor can seek to extricate himself from the responsibility of rectifying breaches, so contracts for sale should be scrutinized with the expertise of an attorney. Further, remember to have the property surveyed by a Commissioned Land Surveyor. The financial institutions/mortgagees tend to have a zero tolerance policy where breaches occur because they do not lend on titles which are imperfect. Thus, even where the covenant breached is one concerning the distance to the fence and the breach occurs because the eave causes the building to be closer than mandated, the mortgagees will insist on modification.