A Matter of Land | How do I become free from my restrictive covenant?

Good day, readers. This week we will respond to another question which I have received.

Good day Mr Francis. I read your column every week and I find it informative, interesting and educational. I have a problem that I would like you to help me with.

My brother and I are in the process of purchasing one acre of land, only to find out that the land is restrictive. We both want separate titles. What steps should we take to have the restriction removed?

The restrictive says only one house, and other appropriate buildings. Also, it says the land cannot be subdivided.

Eagerly awaiting your response.

L.P.

Good day, L.P. Thank you for reading the column weekly, I do appreciate that. Your question is an interesting one and quite common.

RESTRICTIVE COVENANTS

First, person may be wondering what is meant when you said ‘the land is restrictive’. What you are trying to say is that there is a restrictive covenant on the title that states expressly:

i) That no building other than a private dwelling house with appropriate outbuildings appurtenant thereto and occupied therewith be erected.

ii) That there shall be no further subdivision of the property.

These two restrictive covenants will prohibit you from subdividing the property as it is expressly stated in the restrictive covenants, and it would prohibit you from undertaking a subdivision of the property and thus preclude you from attaining your own title for a part of the land.

But this is not an insurmountable problem and I will encourage you to not be too downcast.

There is the option for this restrictive covenant to be modified or removed from the title. The Restrictive Covenants Act allows you to make an application to have a covenant modified or discharged from a title.

Section 3 ­ (1) of the act states, “A judge in chambers shall have power, from time to time, on the application of the Town and Country Planning Authority or of any person interested in any freehold land affected by any restriction arising under covenant, or otherwise as to the user thereof or the building thereon, by order wholly or partially to discharge or modify any such restriction (subject or not to the payment by the applicant of compensation to any person suffering loss in consequence of the order) on being satisfied.”

Therefore, you can make this application for the property that you are considering purchasing.

I also suggest that you consult an attorney to make the application for you so that you and your sibling may enjoy full rights to your own separate titles.

Until next time, traverse well.

MATTER OF LAND ISLAND TOUR

Next week, mortgage specialist Cassandra Francis will be our guest columnist.

The A Matter of Land island tour, which is a series of free presentations, has started with the first staging taking place in Kingston recently.

On the tour I am joined by a valuator/realtor and a mortgage specialist. If you are part of a company and wish for us to make a presentation to your organisation, please contact me for details.

- Craig Francis is a commissioned land surveyor and managing director of Precision Surveying Services Ltd. He can be contacted for questions or queries at craig_r_francis@yahoo.com or Precision Surveying Services