Wed | Oct 18, 2017

Hindrances to the discharge of a restrictive covenant

Published:Sunday | February 1, 2015 | 12:00 AM

Good day, readers. Last week we dealt with correcting breaches by means of modifying or removing of restrictive covenant. This week I want to look at what might be a hindrance to this process.

The discharge/modification of restrictive covenants is governed by the Restrictive Covenants (Discharge and Modification) Act (hereafter 'the act'). Section 3(1) of the act sets out the grounds upon which a judge in chambers may discharge or modify a restrictive covenant.

HINDRANCES

We had spoken about this modification without mention of hindrances to the discharge/modification of restrictive covenants. That is what I would like to discuss this week.

First, any person of interest in the community, such as a neighbour or a member of the community may object to the discharge/modification of the restrictive covenant if they feel that such a discharge/modification will affect the integrity/nature of the community that such a restrictive covenant was meant preserve.

If they think that the removal or modification of this particular covenant may affect their property negatively or their community they may object when the application is made. Both sides would be present their arguments (through their attorneys) to the judge, who would then make a ruling.

Second, the parish councils and Kingston and St Andrew Corporation (KSAC) have been objecting to the removal/modification of restrictive covenants where the breach involves a building that is closer than the required distance from the boundary as stipulated by the restrictive covenant. This objection is made when the building in question was constructed without the requisite approval from the parish council or KSAC. They validity of their objections may be argued; however, they have been doing so and this causes delays which causes frustration loss time and money.

To mitigate having this problem, when thinking of applying for a discharge/modification of a restrictive covenant that is breached by a building you have constructed, ensure that you have an approved building. This will save you time and money, and if you had a plan prepared in the first instance, chances are you would have not created a breach in the first place.

However, if you find yourself with a breach of a restrictive covenant and need it modified or discharged consult your attorney.

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