Imagine rushing out of the house to get to work. You are already running behind time. You come outside and there it is - a flat tire! The thought of having to change the tire is already frustrating. Imagine, knowing how to do it, but at this point wishing somebody was home to help.
What are the options at this point?
get the jack, start to get the flat tire off and then put the spare on.
drive the other vehicle you have parked-luckily there are two vehicles at home.
find a neighbour to help with changing the tire.
just go back inside and call in sick.
Now, imagine preparing to move to a new country, or deciding it’s time to part with your property, you are ready to sell. The sale transaction has started, you are eager to have this thing wrapped up, when your Attorney calls and says, “the Purchaser has sent a Surveyor’s ID Report with a number of breaches set out.” You are like “what?”
Your Attorney says “Yes, these are the breaches:
The gate opens outwards contravening Restrictive Covenant # 9.
The verandah section of the building is 1.9m (6.4ft) from the road boundary, contravening Restrictive Covenant # 10.
The building is straddling the western boundary by 0.7m. (2.3ft).”
Wake up! Wake up! That was only a nightmare. That won’t happen to you because this Suite Attorney will be bringing you on a journey that will leave you knowing what a Restrictive Covenant is, and how not to let that nightmare (Breaches of a Restrictive Covenant) be your reality. Homeowners beware! Sellers prepare!
What is a Restrictive Covenant?
Restrictive covenants are restrictions endorsed on the Title to a property; it limits what a registered owner is able to do with his/her property. It is important to note that these covenants are not only relevant to a registered owner, but they exist for the benefit of adjoining and or surrounding neighbours as their Titles too may have similar limitations endorsed on them.
Many of the restrictive covenants that exist today were first established by developers who were the main players behind the advent of communities, schemes or neighbourhoods, as we know them today. The primary rationale underpinning many of these restrictive covenants is to allow for the peaceable enjoyment of individual property by the respective homeowner(s). Having restrictive covenants on Title may also assist with the preservation of the character and value of the community or ensure uniformity. We see this in many of the newer housing schemes where there are restrictive covenants as to the paint colour that may be selected when painting the outer walls of residential units and or maintaining the frontal appearance of the unit albeit allowing for additions to the structure.
Once a Title sets out the restrictive covenants that limits the use or development of the land, any deviation becomes a breach.
Examples of Restrictive Covenants
Some examples of restrictive covenants that may be found on your Title include (but are not limited to):
All gates and doors in or upon any fence or opening upon any road shall open inwards.
Not to subdivide the said land into smaller lots.
Not to use the building on the said land for the purpose of a club, school, chapel or church and no trade or business whatsoever shall be carried on upon the said land or any part thereof.
No building erected on the said land shall be nearer than eight feet to the boundary of the said land on which the building fronts. For the purposes of this covenant the eaves shall not be considered a part of the building.
The drains shall not be blocked or obstructed in any way.
Not to deposit or permit or suffer to be deposited any garbage on adjoining land or streets or sidewalks.
Homeowners Beware!
I Own the Property Already
You already own your property which suggests that your property was acquired subject to the restrictive covenants endorsed on Title. If you are now seeking to make additions to the building on the actual land, or perhaps enhance your wall and gate, to include modern features, or possibly seeking to subdivide the lot and give your child a piece because you believe it is big enough to share, or maybe even putting up another house on the property, let me caution you against doing so before referring to your Title.
Yes, it is true that most registered owners do not have in their possession the original Title for their property, as the Title is often with the mortgage institution as security. Please note, that notwithstanding this, a copy of your Title may always be obtained from the Title’s Office. We therefore recommend that you obtain and keep a copy of your Title with your important documents at home. The Attorney who may have assisted with the acquisition of your property, in most cases, provides a courtesy copy at the close of the transaction as well. Secure your Title, albeit a copy.
Before building or making additions to an existing structure, consult a Draftsman and or Registered Architect. They will assist with the full process, which will involve designs/drawings that are in keeping with the restrictive covenants on Title to getting the necessary approvals from the Municipal Corporation and Local Planning Department.
When putting up fences or boundary walls and even gates, it is important that you consult a Commissioned Land Surveyor. This will ensure accurate measurements are maintained and restrictive covenants endorsed on Title are complied with. When seeking the services of a Commissioned Land Surveyor, utilise the list to be found on the National Land Agency’s website to verify the status of the Surveyor being used. Do not just take the word of mouth of your ‘brethren’ who usually says “mi have a friend that can deal wid it fi yuh”. No, thanks! Check the verified list!
I am just now Buying my Property
● Via Mortgage
If you are purchasing a property, especially if you will be receiving financing from a mortgage institution, you will need to provide a Surveyor’s ID Report to satisfy the mortgagee that what exists on Title is what actually exists on ground. It will therefore become mandatory for you to obtain the services of a Commissioned Land Surveyor, as your transaction will not be processed without producing a Surveyor’s ID Report. If there are no breaches, then kudos to you on successfully completing this step towards homeownership. If there are breaches, then those breaches will have to be addressed by the Vendor and or with the assistance of his/her Attorney through the Court. While your sale/purchase transaction may still lead to you obtaining the property, there may be lengthy delays in its completion.
● Via Cash Only
My cash buyer friends, listen carefully. Please to seek the services of a Commissioned Land Surveyor when buying property. Yes, a cash sale is often of a shorter duration than obtaining financing from a mortgage institution. However, what cash buyers fail to realise is that the same ease with which you acquired the property, not wanting to be bothered with the additional time and expenses of obtaining a Valuation and Surveyor’s ID Report, is quite the contrary should you want to sell. Your timely sale of the property quickly moves from a dream to a nightmare.
Sorry, but not sorry; let’s stay in this nightmare a little longer. Here we go- you have realised a better opportunity and wish to sell your property you bought some years ago via a cash sale. The property value has certainly increased since the time you bought it. You have an eager buyer, a cash buyer too. However, this cash buyer went and got a Surveyor’s ID Report done. They now return to you, and bam! There are a number of breaches to the restrictive covenants on Title. Wait for it…..there is also an encroachment; a portion of the actual house is on your neighbour’s land. Bigger problem! More money to spend to fix! Again, wait for it….this quick cash sale has now been transformed to a lengthy, lengthy, lengthy, Jamaican lengthy, delay.
Mr. or Miss Cash Buyer, do the right thing when buying property, confirm that your Title and property description, to include the restrictive covenants, are congruent. Again, use professionals such as Commissioned Land Surveyors, Draftsman, and Registered Architects, when making additions to the building(s) on land or making changes that may affect the boundaries.
Sellers Prepare!
As a potential Seller, you may be asking “So what happens if there are in fact breaches of restrictive covenants and how can this be addressed?”
Breaches of restrictive covenants may be minor and thus are able to be physically corrected. E.g the gate opens outwards contravening Restrictive Covenant # 9. A breach of this nature may be corrected by simply having the gate changed to open inward. Then there are breaches that may affect the actual building; “correcting it” may result in structural damage to the actual building that may not bode well for the overall building. E.g. a section of the building and concrete shed along the western section of the property breaches restrictive covenant # 11 which stipulates 1.52m from adjoining fences. As registered owner and Seller, you will now require Court intervention as an application to modify the restrictive covenant will have to be sought. This step may prove to be costly and lengthy as a retroactive approach is often applied. You may be required to have a building plan drawn to reflect the additions that were done to the building by a Draftsman and or Architect and thereafter submitted to the relevant authorities for approval. This is needed before orders sought in Court may be granted; remember judges are not field experts who are tasked with confirming property description and boundary matters. As such, a judge will need to satisfy him/herself with the documentation from the relevant authority that there is no objection to the modification being given as relevant recourse has been sought.
In some cases, a sale/purchase transaction may be cancelled as the Purchaser will be unable to secure financing where a breach of restrictive covenant exists. In fact, a Purchaser may not want to be a part of a transaction that will require an application to modify a restrictive covenant as there is no real end in sight; the onus is on the Seller to have the matter addressed and the sad reality is that the dragging of feet is real, especially, where most of the monies have been obtained. The transaction will end, but when?
On the other hand, albeit breaches affecting the building and boundaries, a sale transaction may still be completed. However, this may be subject to the Seller’s Attorney providing a Letter of Undertaking for the modification of the restrictive covenant and for endorsing same on Title once the final order is granted. Most financial institutions will accept Letters of Undertaking of this nature. What may vary is the perimeter that accompany the Undertaking, that is, withholding a portion of the monies to be paid out to the Vendor. There are instances where the Purchaser, via their Attorney undertakes to do the modification (Vendor reduces the sale/purchase price to accommodate this) and as part of the engagement with the institution, they are required to put up as security, a reasonable sum of money in an account to assist with the successful completion of the application to modify the restrictive covenant(s).
Acquiring real property is always a big deal; an investment that will certainly see returns. Do not be careless with your investment. When buying property, take the relevant steps to verify that the restrictive covenants on the Title are in keeping with what is on ground. Please, before you start to build, remember, to look at your Title. This is where the journey to expansion and development starts. Take all the relevant precautions - get the Surveyor, Draftsman and or Architect and approval from the relevant authorities. You may never know, one day you may want to sell that same property. A dream one day may become a nightmare the next day. Buyers Beware! Sellers Prepare!
This Article is for general information purposes only and does not constitute legal advice.
By Christine Nunes
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