Sat | Feb 17, 2018

A Matter of Land | HELP! Who do I believe? - My surveyor says one thing, the municipal council says another

Published:Sunday | January 7, 2018 | 12:00 AM
Craig Francis

Good day, readers. This week, I respond to another question from a reader.

Good day Mr Francis,

I read your column all the time and I find it very informative. I like how you explain the very technical things about land matters and surveying in a very simple and understandable way.

I now have personal need of your advice. I did a Surveyors' Report to accompany my submission for approval from my municipal council.

The report showed no encroachments or breaches; however, the municipal council is insisting that there is a breach of some restrictive covenant.

The building is two feet from the boundary wall. However, the council is saying it is to be four feet so the surveyor should have reflected a breach.

But the surveyor is adamant that there were no restrictive covenant on the title, and I verified this as I have a copy of the title myself.

The surveyor also says that there are no restrictive covenants in any transfers that were carried with the property.

Who do I believe, and how do I get over this impasse?

- B.B.

Good day B.B, and thanks for your kind comments,

The commissioned land surveyor is the only person, under the laws of Jamaica, who can determine if there is a breach of a restrictive covenant of not. The surveyor is the person qualified and empowered to handle matters concerning this.

So if the Surveyors' Report says that there are no breaches and the surveyor insists, then I am inclined to believe his report.

Unless he is contradicted by another report by another commissioned land surveyor I will side with him. The municipal council, despite being the regulating body, does not have the expertise in house to conclusively determine breaches and other matters of that nature unless it has a commissioned land surveyor in its employ.

The one thing that I find puzzling is that the surveyor states that there are no restrictive covenants endorsed on the title, hence there can be no breach of any as there are none to breach.

Restrictive covenants do not always appear on the Certificate of Title.

Please note that not all the time is the restrictive covenants endorsed on a title.

In the instance of the strata title, the restrictive covenants appear on the strata plan so you will see no restrictive covenants on the Certificate of Titles. Then there are also the titles that are not for strata, where the restrictive covenants are endorsed on what is called the instrument of transfer.

This would be noted on the Certificate of Title so it would be known that one has to get a copy of the transfer document to ascertain what the restrictive covenants are.

You stated that the surveyor said this was not the case in this instance, so in the absence of any restrictive covenant on the certificate of title and no transfer document with the same, then there can be no breach as there are no restrictive covenants to contravene.

The municipal council may be referencing a development order which may speak to a certain distance from the boundary and that is not endorsed on the Certificate of Title. If that is the case, it still has no bearing on the report prepared by the commissioned land surveyor.

His report is against the Certificate of Title and what is on ground at the date of his survey.

I suggest you arrange a meeting of officials of the municipal council, the surveyor and yourself to try settle this impasse.

All the best, and please report to me how it went.

Until next time, traverse well.

- Craig Francis is a commissioned land surveyor and managing director of Precision Surveying Services Ltd. He can be contacted for questions or queries at craig_r_francis@yahoo.com or Precision Surveying Services