A Matter of Land | What can I do to not breach my restrictive covenant?

Good day, readers. Today, we respond to a question from a correspondent.

Mr Francis,

I came across one of your articles in The Sunday Gleaner and have a few queries regarding a restrictive covenant and distance requirements. I hope you can assist me by providing some information.

I currently reside in a townhouse complex, and I am thinking of doing an extension to the back of the building. I am being guided by the restrictive covenant #4 on the title, which states: No new building or permanent structure shall be erected less than 3.05 metres from the side road property boundary.

My questions are:

1. If the extension of the building is done precisely and exactly at the stipulated distance, can an awning be attached to the building without being considered a breach? Your previous writings have advised that eaves must be accounted for in observing distance to boundary requirements. However, are non-permanent items such as awnings also considered part of the building?

2. If the extension of the building is done precisely and exactly at the stipulated distance, can an external ‘pull-down’ metal staircase be attached to access the roof, or would this be considered a breach?

3. Can a pergola structure be placed between the building extending right up to the boundary? Is a pergola considered a permanent structure?

4. If the open area between the building and the boundary is grilled to create an enclosed effect (but still open to weather elements, etc – no roof), is this considered a breach?

Looking forward to your response. Thank you.

Regards.

– S.T.B.

Thanks for your continued support of A Matter of Land. These are very good questions, and I will respond to each concern.

1. You can construct the building as suggested to the exact setback and put an awning on as asked. The awning is considered to be non-permanent and, as such, would not constitute a breach of the restrictive covenant.

2. If, as suggested, the metal pull-down is non-permanent, it would not be a breach of the restrictive covenant as it stipulates no building or permanent structure. I don’t think this would rise to the level of being permanent once it’s as described – a pull-down attachment that’s able to be removed easily enough. It may not be considered a breach.

3. First, I must define what a pergola is for my readers who may not know.

A pergola is an outdoor garden feature forming a shaded walkway, passageway, or sitting area of vertical posts or pillars that usually support cross-beams and a sturdy open lattice, often upon which woody vines are trained.

So this is really a wooden structure that is not permanent and has no walls or roof, hence is not deemed as a building. Second, it is a non-permanent structure, hence it would not cause the property to be in breach if constructed. So, yes, you may construct your pergola.

4. This is again not a breach of the restrictive covenants as it is non-permanent and not a building, so you can indeed construct the grille unless this is not allowed in some other restrictive covenant on the title.

Thanks for your continued support, and I hope that I was able to help clear up all your queries satisfactorily.

Keep sending your questions and comments and let’s continue to explore A Matter of Land.

Until next time, walk good.

- Craig Francis is a commissioned land surveyor and managing director of Precision Surveying Services Ltd. Email questions to columns@gleanerjm.com and craig_r_francis@yahoo.com.