Wed | Nov 14, 2018

A Matter of Land | Help! I don’t want to breach my restrictive covenant

Published:Sunday | September 23, 2018 | 12:00 AMCraig Francis
Craig Francis

Good day, readers. Today we respond to another question from a reader.

Greetings Mr Francis,

On my title restrictive covenant number six says that there must be a 3.5 feet distance between my building and the boundary wall.

I have a one-storey house and plan to build an upstairs soon. My question is, what is the distance I need to have between the walls of the upstairs and the boundary?

Thank you in advance for your feedback.

Regards,

Ricardo

Good day, Ricardo.

The restrictive covenant is what determines what you are allowed to do or not do with or on your property.

If restrictive covenant number six on the face of your title stipulates a setback distance of 3.5 feet from your boundary wall, then this is what is expected for the building regardless of how many floors.

So you are required to maintain a setback of no less than that for the entire building.

What some persons do that causes them to breach the stipulated distance is that in going up with their building, the construction is done on its eaves, which is already at the stipulated restrictive covenant distance, and build the second floor on that very same distance.

However what they don't take into consideration is that when they get to the roof for this second floor they will be having eaves that overhangs this new building and this will cause the building to be in breach of the restrictive covenant.

This is unless the restrictive covenant clearly states that, for the purpose of the particular covenant, the eaves shall not be considered as part of the building.

Some restrictive covenants will stipulate a different setback for every floor you go up vertically however that doesn't seem to be the case in your instance.

So you are required to ensure that your setback from the boundary is the stipulated 3.5 feet and this should include the eaves. Once you ensure that no part of your upstairs floor is less than 3.5 feet from the boundary, you won't breach the restrictive covenant.

Note: The eaves of a building is the part of a roof that meets or overhangs the walls of a building it is also referred to as the cantilever.

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