Thu | Jul 18, 2019

A Matter of Land | Will a breach of the covenant stop the sale of my property?

Published:Sunday | May 6, 2018 | 12:00 AM
Craig Francis
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Good day, readers. This week, I respond to another question from a reader.

Hello Mr Francis,

I'm in the process of selling a piece of land with an incomplete building on it. A surveyor pointed out that part of the house was too close to the boundary line and that I needed to apply for a modification to the covenant.

I'm not on the island at the moment and need some guidance on the matter.

Can the purchaser get an attorney to make the application? How long will the process take?

Can the mortgage process still continue while the application is being made?

How costly is this process?

- P

Good day P,

Thank you for taking the time to pen this question. I will try to assist you as best as possible.

When you said that a surveyor pointed out to you that the building was too close to the boundary and was in breach of the restrictive covenant, I am going to assume that he did so in a surveyor's identification report.

If you don't have a report showing the nature of the breach and the distance from the boundary, you need to have your surveyor provide you with one.

The purchaser's attorney is not able to make this application on the purchaser's behalf as the purchaser's name is not on the title, and as such, has no legal interest in the property.

If you, however, feel comfortable in using the purchaser's attorney to make the application on your behalf, then he or she can be asked to do so, but I would recommend that you have your attorney do this application for you as he or she would already be advocating on your behalf.

The mortgage process can continue as long as your attorney sends to the mortgage institution a letter of undertaking stating that they are aware of the breach and that an application will be made to the Supreme Court for modification or removal of the restrictive covenant that has been breached.

The attorney will also state the amount of money that the mortgage institution is to withhold from the mortgage amount that will be managed and paid over after the restrictive covenant has been fixed.

So, essentially, you would not have to come up with the monies in advance to pay your attorney if you want to choose this route. Six months is an average time to get the modification of a restrictive covenant.

As to the cost, that will depend on the attorney you use, and I cannot speak to their pricing. I will, however, be sending you recommendations of attorneys you can call. All the best in your sale.

Keep sending your questions and comments and let's continue to explore A Matter of Land. 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 his Facebook page.