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A Matter of Land | Watch those restrictive covenants; they could cost you

Published:Sunday | June 14, 2020 | 12:08 AM
Greater Portmore, St Catherine
Greater Portmore, St Catherine

In January of this year, 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.

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 to look at what are restrictive covenants, why are they important, and how do we modify or remove them from a title.

RESTRICTIVE COVENANTS

First, let’s look at what are restrictive covenants.

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

What has been happening in communities like Greater Portmore in St Catherine is a neglect and disregard for their restrictive covenants and it will affect 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 brings other social problems that have a negative effect on the community.

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 this exacerbates the probability of flooding.

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

I will say again to property owners, please observe your restrictive covenants, as it not only affects you, it also affects the community. Restrictive covenants are usually required in subdivision of land in a development scheme and tend to create and preserve the character of the neighbourhood. Restrictive covenants and the recitals must be included as part of the transfer if the parties desire the covenants to be noted in the certificate of title.

These covenants must be negative in their nature and must be capable of running with the land. This means that they normally restrict you from doing some action or activity on the property, and it does not cease or stop with a sale of the property or with a transfer of ownership. It runs with the property until lifted or modified.

THE BREACH

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 next article, I will continue 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 Land. Until next time, traverse well.

- Craig Francis is a commissioned land surveyor and managing director of Precision Surveying Services Ltd. Email feedback to amatterofland@gmail.com and editorial@gleanerjm.com