Fri | Jun 18, 2021

Editorial | Explain plan to ease restrictive covenants

Published:Friday | May 14, 2021 | 12:05 AM

Given their too many experiences of powerful developers – sometimes with the complicit state agencies – jackbooting it over their rights, Prime Minister Andrew Holness will appreciate why many people will be wary of plans to make it easier to remove restrictive covenants.

Indeed, any adjustment to the current law should be preceded by fulsome public consultations, including direct discussions with community groups, before the legislation is drafted and the matter is debated by Parliament. This must not be a Nicodemus-like process. For, as Mr Holness should be aware, there have been many calls in recent times, including by this newspaper, not only for existing law to be vigorously enforced, but strengthened – rather than weakened.

Our latest concern was triggered by a brief, and little noted, comment by Everald Warmington, a minister without portfolio in the Ministry of Economic Growth and Job Creation, during his May 5 contribution to the ongoing sectoral debates. Restrictive covenants, Mr Warmington noted, were clauses in property title that limited “what the owner of the land can do within the property boundaries”, and were intended “to enhance property values by controlling development”. Which, in a broad sense, is a true, if not nuanced, interpretation of the concept.

He went on: “During this financial year, the Government will commence amendments to the Restrictive Covenants Act to protect the rights of property owners and also to make the process of covenants modification less onerous to all parties.”

That declaration requires further, and better, particulars, including the specific mischief the amendment is intended to cure and how the decision may have been influenced by recent court decisions against the National Environment and Planning Agency (NEPA) and the Kingston and St Andrew Municipal Corporation (KSAMC), in favour of communities, on how they exercised their discretion in approving developments. For, insofar as this newspaper is aware, there is no clamour for changes to the process by which restrictive covenants are removed or varied. Except, maybe, by cowboy developers.

DEVELOPMENTS SPRING UP OVERNIGHT

Mr Warmington has a point about the efficacy of restrictive covenants in protecting property value. But that is unlikely to be the first thought of homeowners who object to the new, increasingly high-rise, often expensive, developments that frequently spring up almost overnight in their communities.

Among the consideration the people have when they buy into a community is its character – the feel, tone and texture of the environment in which they intend to live. Communities try to lock in those characteristics with restrictive covenants that limit what existing owners, or new entrants, can do with their property, so that the essential elements of the neighbourhood will not be altered willy-nilly.

The route to the removal or modification of restrictive covenants is supposed to be via the court, where a judge is obligated to give a hearing to the Government’s planning and development agencies and “any persons who appear to be entitled to the benefit of the restriction sought to be discharged, modified, or dealt with”. Applicants may be required to advertise their request for a change in covenants, or directly contact the people who may be injured by the modifications.

These rules, especially in the past, were often ignored – most obviously in some of Kingston’s older, formerly lower-middle-class residential neighbourhoods. Without notice, commercial or industrial enterprises would begin to operate in what, mere weeks before, were people’s homes. Communities such as Eastwood Park Gardens, Richmond Park, and several others in the Corporate Area were victims to this illegal, insidious encroachment.

FAIT ACCOMPLI

In many instances, too, the planning agencies may give permission for a project which would begin and reach an advanced stage, before the developer applied to the court for a removal or a modification of the covenants. Essentially, that presented the affected communities with a fait accompli, for which the government authorities took no responsibility. This was the case last year with a multistorey residential development at 9 Evans Avenue, St Andrew, which neighbours complained had been permitted and was far advanced, although its developers had not applied for a change to the community’s restrictive covenant.

“A restrictive covenant being a right vis-à-vis private parties is not a planning criterion,” the KSAMC, the parish’s local planning authority, asserted in the face of the concerns. This newspaper, at the time, proposed the planning law be amended to say that a development, despite its approval, could not proceed in the absence of a discharge of the restrictive covenant.

Developers often risk operating outside the law on the assumption that community members, generally older, retired people with little money, cannot afford, or are afraid, to challenge them in court. Happily, some communities have been fighting back.

Last December, residents of Birdsucker Avenue, Kingston 6, won a court ruling against NEPA and the KSAMC for breaching the regulations with respect to height and capacity of an apartment they allowed, whose construction was complete. The building permits, the court held, were null and void. Earlier, in January 2020, the court also ordered the demolition of a complex in another Kingston 6 community, whose developers built it before their application for a change to the restrictive covenant was heard, despite knowing that the neighbours objected.

Hopefully, the intent of Mr Warmington’s comment is not to give developers a free pass, to spur Prime Minister Holness’ ambition for high-rise buildings across Jamaica. Having high-rise buildings is not a bad thing, if the supporting infrastructure is in place. But all of Jamaica need not attempt to look like Singapore, which, though a successful city-state, is roughly the size of the eastern Jamaican parish of St Thomas.