Fri | Sep 22, 2017

A matter of land | Can my restrictive covenant be lifted?

Published:Sunday | June 26, 2016 | 6:00 AMTimothy Thwaites
Timothy Thwaites

This week, Timothy Thwaites continues to respond to questions from readers in the absence of regular columnist Craig Francis.

Question:

Is it difficult to lift a restrictive covenant? I am interested in purchasing a house that is for sale with two buildings on the property. The restrictive covenant indicates that only one building or home should be on the land. In your experience, is this something that can be lifted?

Dear Reader,

A restrictive covenant is an agreement that is established between the vendor and a purchaser of a property, where it is agreed that certain things will not be done with the land.

In most cases, this is done when the original title is issued, and is shown on the face of the title. In a few cases, the restrictive covenants are endorsed subsequently via another legal instrument.

Covenants are said to "run with the land", which means that they bind not only the current owner, but all future owners as well. Their general purpose is to preserve the character of a neighbourhood by restricting the type of land use, improvements, and activities that can take place on the particular parcel.

Examples of limitations include not allowing land to be subdivided into smaller parcels, restricting use to only residential purposes, limiting how close to a boundary line someone can build, and, as in your case, how many buildings can be constructed on the land.

As stated, a covenant may exist to preserve character, but it is also true that the character of a neighbourhood can evolve and change over time, so there may be a desire to amend or remove a covenant that is running with the land to accommodate changed use.

There are facilities to modify - change particular details, or discharge - remove completely covenants via the Restrictive Covenants (Discharge and Modification) Act and the local authorities (municipal councils).

In a few cases, a covenant will explicitly allow for its modification by way of approval of the local authority. In those cases, you must make an application to that body.

In more general cases, the Restrictive Covenants (Discharge and Modification) Act allows for an application for modification or discharge to be made to the Supreme Court, with potential changes authorised by a judge in chambers.

In his or her deliberation, the judge would try to satisfy themselves that:

i) The character of the neighbourhood has changed and the existing covenant is now obsolete.

ii) The covenant, in its current form, would impede the reasonable use of the land.

iii) All persons who were intended to benefit from the covenant agree to its modification or discharge, and,

iv) That the modification or discharge will not injure anyone entitled to benefit from its existence.

 

ASSISTANCE of an ATTORNEY

 

An attorney-at-law would assist you in making that application, and would be guided by specific facts regarding the breach of covenant presented by a commissioned land surveyor in a Surveyor's Identification Report.

The Restrictive Covenants (Discharge and Modification) Act empowers the judge to request that notices be served on all parties that are entitled to benefit from the existing covenant, to solicit their approval or objection to the proposed changes.

These parties may include owners of adjoining parcels, other owners in a subdivision, mortgagees, and the relevant local authorities. It may also be required that the proposed modification be advertised in the daily newspapers.

The level of difficulty in making the application is dependent on the ability to satisfy the qualifying requirements of the judge - as given above, as well as the ability to garner agreement from all the benefiting parties to the proposed changes.

There is, therefore, no guarantee that any application will be approved, but there are facilities in place to give every land owner the opportunity to explore the possibility.

Always engage your commissioned land surveyor and attorney-at-law for advice and guidance when you are considering changes to a covenant on your title.

n Keep sending our questions and comments and let's continue to explore A Matter of Land. Until next time traverse well. For questions or queries contact craig_r_francis@yahoo.com or Precision Surveying Services. Timothy A. Thwaites is a commissioned land Surveyor at Thwaites Surveying Ltd.