Thu | Aug 6, 2020

A Matter of Land | Watch those restrictive covenants. They could cost you

Published:Monday | March 30, 2020 | 12:15 AM
Upper Montrose Road town houses and apartments constructed at a cost of more than $100 million in the upscale Golden Triangle area of St Andrew have been ordered demolished. Restrictive covenants could cost developers a pretty penny if the choose to ignore them, writes Craig Francis.
Upper Montrose Road town houses and apartments constructed at a cost of more than $100 million in the upscale Golden Triangle area of St Andrew have been ordered demolished. Restrictive covenants could cost developers a pretty penny if the choose to ignore them, writes Craig Francis.

In January, a developer was ordered to immediately demolish two two-bedroom town houses and apartments in the upscale Golden Triangle area of St Andrew. The properties cost more than $100 million to construct, it was reported.

The Supreme Court, in making the order, said that the owners of the property breached the restrictive covenant, which dictates the manner in which the land can be used.

So this week, I want us to look at what restrictive covenants are, why they are important, and how we modify or remove them from a title.

First, we want to look at what restrictive covenants are.

The restrictive covenants for a property (community) directly control the use of the land, protect the integrity of the property and community, and are designed to protect, enhance or maintain a certain state.

What has been happening in communities like Greater Portmore is neglect and disregard for restrictive covenants, thus affecting the nature and order of the community.

Persons operate businesses at their homes, which contravenes the restrictive covenants. This not only affects the value of your property negatively, but it causes other social problems that affect the community. Some persons build too close to the boundaries and also build over the swales. This affects the community when it rains, as the water is unable to flow freely, and exacerbating the probability of flooding.

The restrictive covenants should be adhered to. If you are unaware of what they are, then get a copy of the certificate of title and familiarise yourself with them. They are placed there for a very good reason. Respect and adhere to them.

Property owners, please observe your restrictive covenants, as they not only affect you; they also affect the community. Restrictive covenants are usually required in subdivisions of land in a development scheme and tend to create and preserve the character of the neighbourhood. Restrictive covenants and the recital must be included as part of the transfer if the parties desire the covenants to be noted in the certificate of title.

NEGATIVE IN NATURE

These covenants must be negative in their nature. They normally restrict you from doing some action or activity on the property. Also, they do not cease with the sale of the property or with a transfer of ownership. They run with the property until lifted or modified.

A breach of a restrictive covenant can only be confirmed by a commissioned land surveyor and is normally identified and described by means of a surveyor’s identification report. An example is when a building is erected closer to the boundary than the stipulated distance set out in the restrictive covenant of the certificate of title.

We will continue in the next publication with modifying or removing a restrictive covenant. In some instances, a developer may apply to have restrictive covenants modified or lifted from titles to facilitate certain types of development.

Keep sending your questions and comments, and let’s continue to explore A Matter Of Land.

Until next time, walk good.

Craig Francis is a commissioned land surveyor and managing director of Precision Surveying Services Ltd. He can be contacted for questions or queries at amatterofland@gmail.com. Email feedback to columns@gleanerjm.com.