Thu | May 25, 2017

How to correct restrictive covenant breaches (Pt 2)

Published:Sunday | January 25, 2015 | 1:00 AM

Craig Francis, Contributor

Good day, readers. I want to thank Leslie B. Mae for responding to the reader who had questions relating to his last contribution to this column.  This week I will, as promised, deal with the other method of addressing breaches of the restrictive covenant.

What are breaches?

A breach is failing to follow the restrictive covenants that are on the title or in the annexure 'B' of the strata title, or in the articles of transfer for a particular title or titles.

The literal meaning of the word is: a failure to maintain something, a failure to obey, keep, or preserve something. Hence, a breach of a restrictive covenant is a failure to obey or keep one or more of the stipulations of the restrictive covenants.

Modifying or removing a restrictive covenant

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.

In the previous article about correcting breaches we spoke about removing the causation of the breach as a means of remedying the problem. Today we look at the method of having the restrictive covenant itself modified or removed from the Certificate of Title.

Grounds for modification or discharge of restrictive covenant

Under Section 3 of the Restrictive Covenants (Discharge and Modification) Act in Jamaica the grounds are:

1. By reason of changes in the character of the property neighbourhood or other circumstances which the judge may deem material, the restriction ought to be deemed obsolete.

2. The continued existence of the restriction or its continued existence without modification would impede the reasonable user of the land for public or private purposes without securing to any person practical benefits sufficient in nature or extent to justify the continued existence of the covenant or its existence without modification.

3. Persons of full age for the time being entitled to the benefit of it have agreed expressly or by implication by their acts/omissions to the discharge and/or modification of the covenant.

4. The proposed discharge/ modification will not injure the persons entitled to the benefit of the restrictions.

So effectively, if you have breached a restrictive covenant and need to have the matter corrected you may apply, though an attorney-at-law, to a judge in chamber to have the restrictive covenant modified or discharged. You may also apply for this modification or discharge even if you have not yet breached a restrictive but may need to have a change of use to the property than supported by the restrictive covenant and want to have it removed or modified.

This, however, is a costly and time-consuming venture so my advice to you is to know your restrictive covenants and try not to breach any so as to save yourself time and money.

Keep sending your questions and comments and let's continue to explore A Matter 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 Precision Surveying Services