Life & the Law | What restrictive covenants mean for you and your property
What are restrictive covenants and do they really affect me and my property? I have been asked these questions many times.
The simple answer is restrictive covenants are rules, prohibitions and conditions which are registered against the title of a property, which restricts the way in which the registered proprietor can use, manage and alter the premises.
These restrictions are in place to protect and benefit all the persons who are affected by the restriction, which includes adjoining owners.
Ordinarily, the covenants are printed on the face of the title, but in other instances they are registered as a separate annexure and one would have to request a search at the Office of Titles to obtain a copy of the document.
Regrettably, because of ignorance, homeowners tend to pay little attention to the restrictive covenants on their titles. Often their first encounter with them is when a homeowner wishes to sell his property and a surveyor’s identification report reveals a breach of a restrictive covenant.
More often than not, this breach is one of distance between the building and the registered boundary. The breach may have likely occurred when some construction was done on the property, be it a new construction or the extension of an existing building.
By virtue of the Building Act, prior to any erection on the property, the homeowner must first submit a building plan for approval and build in accordance with the approved plan. Quite often, however, homeowners proceed to construct without obtaining the requisite approval from their local municipality. There are also instances where the contractors fail to adhere to the provisions in the approved plan.
Fixing the breach
The Restrictive Covenants (Modification and Discharge) Act permits the homeowner to make an application to the Supreme Court to modify the wording of the covenant on title and, by so doing, make it compatible with the existing structure on the ground. This application must be served on the local authority or municipality and they are at liberty to issue comments on the application.
The hurdle most applicants face at this juncture is that the local authority, upon being served with the application, will carry out an inspection of your building and their records to determine whether the registered proprietor(s) applied for and received its approval for the construction.
If they find no evidence that an initial plan was submitted for approval, the municipality is likely to object to the court granting the application and will instruct the registered proprietor to submit building plans representing the construction as it is built, referred to as an ‘as-built’ plan.
CONSIDERATIONS FOR A HOMEOWNER
1. Time – Most municipalities meet once per month to vet and issue approvals for building plans, so the turnaround time from submission to completion can take up to eight weeks.
2. Delay – The application before the court is put on hold until the municipality is satisfied with the building plan submitted (after inspection of the premises and requested amendments to the engineer’s report or the plan are made) and the municipality then withdraws its objection.
3. Cost – The homeowner would incur costs to have the building plan prepared and also an engineer’s report and costs to submit the plan for approval. These costs are in addition to the legal costs accruing for the application for modification of covenant, which the homeowner still has to pursue – or by then is already pursuing – through the court.
WHAT IS THE DRAWBACK?
Regrettably, after all the effort put into satisfying the requirements of the municipality in submitting an application for as-built approval, there is no guarantee that the application will be successful, resulting in the municipality withdrawing its objection to the application for modification.
In fact, it is not unheard of for the municipality to indicate that the boundary is to be set back within the minimum allowance of four feet before it will withdraw its objections. The approval, if given, may also be subject to demolition of the very structure for which the homeowner is attempting as-built approval.
WHAT CAN THE HOMEOWNER DO TO PROTECT HIMSELF?
Be mindful of the covenants on your title and enlist the help of a commissioned land surveyor when considering any change in the boundaries, including the footprint of the building on the property.
DOING IT RIGHT
1. Plan to do it right the first time by following the prescribed rules of the municipality, through guidance from your surveyor.
2. If a homeowner wishes to expand, erect, or make general structural modifications to his property, ensure that a building plan is prepared by a competent person such as a draughtsman or a structural engineer and submitted for approval.
3. Doing it right saves the homeowner time, additional costs (including legal costs) and inordinate delays in the court system.
Nicole Sappleton is a partner at Karene N. Stanley & Company Attorneys-at-Law and a part-time lecturer at the Mico University College. Email feedback to firstname.lastname@example.org and email@example.com.