What are restrictive covenants and do they really affect me and my property? I have been

asked these questions many times. The simple answer is Restrictive Covenants are rules,

prohibitions and conditions which are registered against the title of a property which restricts

the way in which the registered proprietor can use, manage and alter the premises. These

restrictions are in place to protect and benefit all the persons who are affected by the

restriction which includes adjoining owners. Ordinarily, the covenants are printed on the face

of the title but in other instances they are registered as a separate annexure and one would

have to request a search at the Office of Titles to obtain a copy of the document.

Regrettably because of ignorance homeowners tend to pay little attention to the restrictive

covenants on their titles. Often their first encounter with them is when a homeowner wishes

to sell his property and a Surveyor’s Identification Report reveals a breach of a restrictive

covenant. More often than not, this breach is one of distance between the building and the

registered boundary. The breach may have likely occurred when some construction was done

on the property, be it a new construction or the extension of an existing building.

By virtue of the Building Act prior to any erection on the property, the homeowner must first

submit a building plan for approval and build in accordance with the approved plan. Quite

often however homeowners proceed to construct without obtaining the requisite approval

from their local Municipality. There are also instances where the Contractors entrusted to do

the work fail to adhere to the provisions in the approved plan obtained.

How then do you fix this breach? The Restrictive Covenants (Modification and Discharge) Act

permits the homeowner to make an application to the Supreme Court to modify the wording

of the covenant on title and by so doing make it compatible with the existing structure on the

ground. This application must be served on the local authority or municipality and they are at

liberty to issue comments on the application. The hurdle most applicants face at this juncture

is that the local authority, upon being served with the application, will carry out an inspection

of your building and their records to determine whether or not the registered proprietor(s)

applied for and received its approval for the construction.

If they find no evidence that an initial plan was submitted for approval, the Municipality is

likely to object to the Court granting the application and will instruct the registered proprietor

to submit building plans representing the construction as it is built; referred to as “as-built”

plans. There are several considerations for a homeowner at this point:-

1. Time – Most Municipalities meet once per month to vet and issue approvals for

building plans and hence the turnaround time from submission to completion can take

up to 8weeks

2. Delay – The application before the Court is put on hold until the Municipality is

satisfied with the building plan submitted [after inspection of the premises and

requested amendments to the Engineer’s Report or the Plan are made] and the

Municipality then withdraws it’s objection.

3. Cost – The homeowner would incur costs to have the building plan prepared and also

an Engineer’s Report and costs to submit the plan for approval. These costs are in

addition to the legal costs accruing for the application for modification of covenant

which the homeowner still has to pursue or by then is already pursuing through the

Court.

What then is the drawback? Regrettably after all the effort put into satisfying the

requirements of the Municipality in submitting an application for as- built approval there is no

guarantee that the application will be successful resulting in the Municipality withdrawing its

objection to the application for modification. In fact, it is not unheard of for the Municipality to

indicate that the boundary is to be set back within the minimum allowance of four feet before

it will withdraw its objections. The approval if given may also be subject to demolition of the

very structure for which the homeowner is attempting as- built approval.

What can the Homeowner do to protect himself ?

Be mindful of the covenants on your title and enlist the help of a Commissioned Land Surveyor

when considering any change in the boundaries to include the footprint of the building on the

property.

Plan to do it right the first time by following the prescribed rules of the Municipalities through

guidance from your surveyor. If a homeowner wishes to expand, erect, or make general

structural modifications to his property, ensure that a building plan is prepared by a

competent person such as a Draughtsman or a Structural Engineer and submitted for

approval. This would save the homeowner time, additional costs (including legal costs) and

inordinate delays in the Court system.

Mrs. Nicole Sappleton.

Published in the Gleaner of May 6, 2019