Tue | Feb 25, 2020

A Matter of Land | Why am I in breach and my neighbour is not? (Pt 2)

Published:Sunday | July 22, 2018 | 12:00 AM
Craig Francis

Good day, readers,

Today, we continue with the response to a question from G.W. about a breach of a restrictive covenant, in that he has a building that is closer than the required distance to the front boundary. We will also expand it to how to correct breaches in general.

Next week, we will look at maintenance fees in town house complexes, as we have been getting many questions about this issue.

G.W., there are three options available to you.

The first option is a removal of the additional structures that are causing the breach. You state that the first breach is that one of the buildings is too close to the boundary, in breach of the setback distance stipulated by the restrictive covenant. Depending on what part of the structure is causing the breach, that may be removed to correct that problem. The same removal of the other two structures would bring the property into full compliance with the stipulations of the restrictive covenants.




The second option is to have the restrictive covenant on your registered title removed. You would do this through your attorney, who would make an application to the courts to have particular covenants removed. This is probable the most difficult to achieve as the local authority would not be very willing to allow this unless there are mitigating circumstances.

The third option, and the one I would recommend, is that you, through your attorney-at-law, make and application to the courts to have your restrictive covenants on your registered title modified.

For this, you will need a detailed surveyors' identification report that lists each breach in a detailed way. This will help the lawyer to modify the breaches in a very specific way to address your specific breaches.

For example, if the distance to the boundary is to be 10 feet, and it's only seven, the attorney can state the number seven specifically on the title to address your situation exactly.

This application can be made, and depending on the input from the local authority, can take as little as six months.

I hope you will have your situation sorted out in the best possible time.

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.