A matter of land | Watch those restrictive covenants, they could cost you (Part 2)

Good day readers. The last time, we looked at what are restrictive covenants and their importance. In light of the $100-million complex that was recently ordered demolished for breach of the restrictive covenants, today we will look at the process of modifying restrictive covenants and why.

MODIFYING OR REMOVAL OF RESTRICTIVE COVENANTS

This is the method of having the restrictive covenant itself modified or removed from the Certificate of Title.

Grounds for modification or discharge of restrictive covenant:

Under Section 3 of the Restrictive Covenants (Discharge and Modification) Act in Jamaica, the grounds are:

1. By reason of changes in the character of the property neighbourhood or other circumstances which the judge may deem material, the restriction ought to be deemed obsolete.

2. The continued existence of the restriction or its continued existence without modification would impede the reasonable user of the land for public or private purposes without securing to any person practical benefits sufficient in nature or extent to justify the continued existence of the covenant or its existence without modification.

3. Persons of full age for the time being entitled to the benefit of it have agreed expressly or by implication by their acts/omissions to the discharge and/or modification of the covenant.

4. The proposed discharge/modification will not injure the persons entitled to the benefit of the restrictions.

So effectively, if you have breached a restrictive covenant and need to have the matter corrected, you may apply, through an attorney-at-law, to a judge in chamber to have the restrictive covenant modified or discharged. You may also apply for this modification or discharge even if you have not yet breached a restrictive covenant but may need to have a change of use to the property that is supported by the restrictive covenant and want to have it removed or modified.

This, however, is a costly and time-consuming venture so my advice to you is to know your restrictive covenants and try not to breach any so as to save yourself time and money.

MODIFY OR REMOVAL FOR DEVELOPMENT PURPOSE

In some instances, as was the case mentioned above, the developer wanted the restrictive covenant lifted to place multifamily housing units on the property, in contradiction of the restrictive covenant on the title. Hence, he applied for the discharge of said restrictive covenant to pave the way for his development to proceed.

He applied and took all the necessary actions to have this done; however, he started and completed the development prior to receiving the approval from the court for the modification, and during the process the neighbours who have a say objected and the judge in the matter sided with them.

This has now led to the development being ordered demolished after $100 million has been spent for the construction. This is because the development breaches that particular restrictive covenant and the property must be returned to a state that has no breaches.

So I implore you, readers, to observe your restrictive covenants or it could cost you, and cost you dearly.

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