Sun | Aug 19, 2018

Restrictive covenant law good for homeowners, lawyers say

Published:Wednesday | October 18, 2017 | 12:00 AMMcPherse Thompson
Attorney-at-law Clayton Morgan.
Attorney-at-law Bert Samuels.

Anyone who feels aggrieved by any kind of development in their neighbourhood can invoke the provisions of the Restrictive Covenants (Discharge and Modifications) Act to kill the project, according to attorney Clayton Morgan.

While Morgan notes that Jamaica is "running out of land" for development, he also said a recent ruling by the Court of Appeal denying a project slated for in Cherry Gardens serves to protect residential property owners who want to maintain the character of their neighbourhood.

Asked about the wider implications of the ruling against the Ministry, attorney Bert Samuels said that given the nature of residential areas there are restrictions on what can be done because persons make investments based on the nature of the development that is permitted.

"In any civilised community there must be consistency so that people can make long-term investment decisions," Samuels said, noting that to most people their most important investment is their home.

The appellate court upheld a Supreme Court ruling barring the Ministry of Housing from constructing six town houses on land it owns at 2A Mark Way in the upscale neighbourhood, in a case brought by Lancelot and Jean Raynor who objected to the ministry's proposal to place the development next to their property.

"This Cherry Gardens case is very important in my view because what it does, it protects the right of citizens in the sense that if you build your castle in Cherry Gardens or anywhere a man's home is his castle and the State or anybody try to build something not only beside you but in that neighbourhood, then if that is going to devalue your property," the court can prevent such activity under the act, Morgan said.

Another attorney, Bert Samuels, notes that home purchases are long-term decisions and homeowners have a right to expect consistency.

"When you change the quality of a neighbourhood and the density of a neighbourhood it has implications on social services, including disposal of garbage, traffic and the quality of the environment," said Samuels.

"The Charter of Rights guarantees that the State shall do nothing to affect the quality of the environment as a new right, and people argue that density can affect the quality of the environment," he told Gleaner Business.

The housing ministry pitched to the court that the restrictive covenant law passed in 1960 needed to be updated to reflect modern conditions.

That argument comes amid declining land space for real estate projects in urban centres, particularly Kingston, which the central planning authority is attempting to address by changing density requirements to facilitate high rise structures.

Morgan, whose firm is noted for handling real estate cases, disagrees that the covenant law is becoming obsolete.




"If you build your house in Cherry Gardens when there were only two houses up there and you had the use and enjoyment for 25 years, and on that title if there is a restrictive covenant which says only one single family home shall be built on each of those lots, no multi-storey building, no commercial, no cemetery, no school and then all of a sudden the Ministry of Housing or whoever turns up and try to build, you have a right to say no," the attorney said.

"It was not envisaged at that time when they bought that property that a whole heap of tenants or landowners would construct multi-storey buildings beside them. It destroys the character of the neighbourhood and the value of their property would be diminished," he told Gleaner Business.

Referring to the Housing Association of Jamaica's recent groundbreaking for a project in Luana, St Elizabeth a rural parish Morgan said those are the types of places that state developers now have to target for building.

"Any how they come within the Golden Triangle, so to speak, they are going to have a problem because the courts are going to prevent them from doing so unless they can succeed in getting the restrictive covenant lifted," he said.

Morgan said the Raynor case has implications for other developments, because given that the demand is so strong for middle-income and low-income housing, the Ministry of Housing or the Housing Association of Jamaica will have to be very careful in selecting areas for development.

Moreover, if they try to change the character of agricultural land to build houses they will also face objections from stakeholders in that sector, he noted.

"So where are they going to build? Land is getting scarce. And it's the same problem the parish councils are having now in finding land to put cemeteries, because they are facing objections from residents," Morgan said.

"Use of land is a very touchy subject. You can't just build any and anything anywhere you want it."

He noted that in the Kingston and St Andrew area, it's said that garages and churches are popping up in neighbourhoods, but notes that such situations persist only because the perpetrators "are not being challenged by people like the Raynors".

"This Restrictive Covenant Act is a very important law. Anybody who feels aggrieved by any kind of activity in their neighbourhood, whether it's by the state or private persons, can invoke the provisions of that law and go to court and get an injunction to prevent them from carrying out such development," Morgan said.