Consequences: Considerations Before You Build (Restrictive Covenants)
Thinking about making an addition to your home or investing in a new real estate development? Before you build that additional room to the back, construct that high-rise apartment complex or make any change to land in general, take a close look at your Certificate of Title. There may be some important restrictions endorsed on the title which prohibit such changes to your home and a breach of these restrictions may have serious consequences. These restrictions are called restrictive covenants and appear on most titles.
What is a Restrictive Covenant?
It is essentially an agreement to limit what you are able to do with your land. It generally exists for the benefit of the adjoining properties which would normally have the same or similar restrictions for the benefit of your property.
Restrictive Covenants are often put in place by a developer of a subdivision or other neighbourhood so as to ensure that everyone in the community can peaceably enjoy their property without undue interference from a neighbour. For example, a covenant restricting the land to residential homes ought to prevent your neighbour from building a call centre or any other commercial building beside you.
Whilst a call centre or a commercial building in a residential neighbourhood might be an obvious breach of restrictive covenants, even without reading your title, it is often the less conspicuous covenants that create the problems. A few for example are restrictions on the height of walls, minimum distance requirements for the building in relation to a boundary, restrictions to one dwelling house or single-family homes (for developers) being built on the land. There are several other examples and these will vary across different communities due to various factors such as Development Orders, Zones (tourism vs residential vs commercial) and even the age of the title. So long as the restriction remain unchanged on the title, not abiding by them will be a breach.
Consequences of a Breach
There are varying degrees of consequences for a breach of a restrictive covenant:
- No real consequence where the breach is minor (e.g. a boundary wall that is built slighty higher than the prescribed limit), provided an application is made to modify the covenant. Usually in the case where the character of the neighbourhood has changed so much that the covenant becomes obsolete.
- Being unable to sell your property due to the multiple breaches. It is a requirement of most mortgagees and purchasers that the title for a property being purchased is clear and free of all encumbrances and breaches. An existing breach of a restrictive covenant has the potential to jeopardise your sale as it may affect the purchaser’s ability to get financing for the purchase of your property.
- Being required by a bank or financial institution to modify a covenant that is in breach when selling your property which will cut into your proceeds of sale.
- Being required by the Court or local parish council to demolish or make costly changes to a development deemed to be in breach.
If you are fortunate, you will only have to deal with consequences 1 – 3, which in comparison to 4 may be considered mild. If you are already in breach of the restrictive covenants, consult your attorney for guidance on making an application to modify the covenant. You should also consult your attorney for any plans to make additions/changes to your home or land.
Prospective real estate developers who paid attention to the media earlier this year should understand the importance of legal consultation in relation to restrictive covenants before construction. The Supreme Court judgment in Sarah Hsia et al v Martin Lyn et al handed down on January 21, 2020 saw a judge grant an injunction to demolish a newly constructed multiple residence complex, in so far as the structures built on the land (comprising town houses and apartments) were in breach of three (3) of the restrictive covenants endorsed on the title which essentially limited the use of the land to single residences. The developer failed to complete an application to modify restrictive covenants before starting construction. The full case is available on the Supreme Court’s website and was discussed in an article titled “Arrested Development in Kingston 6 and 8” by Gavin Goffe, a partner at Myers Fletcher & Gordon. The article was published February 2nd,2020 in the Business Observer and is on the Firm’s website.
How does an Application to Modify Work?
The application is made to the Supreme Court by the registered owner of the property through their attorney. The application is served on the local parish council and the National Environment and Planning Agency for their assessment and you may be required to comply with certain requests from these authorities or obtain “as built approval”. Notices of your application must be served on your neighbours who have the benefit of the restrictive covenant and also advertised in the newspaper in accordance with relevant legal requirements. This is to allow persons an opportunity to object to the modification.
Assuming everything goes well and there are no objections, a final order is made by the Court, and the order modifying the covenant is endorsed on the title by the Registrar of Titles. This on average will take a few months so it is best to start as early as possible.
Becoming an owner of land brings a sense of pride and achievement, however, there is also a responsibility to comply with the covenants endorsed on the title or to apply to the court to modify them to suit your plans. Now that you have read over your title, save yourself from undue hardship, and consult your attorney before you start any construction.
Antwan Cotterell is an Associate at Myers, Fletcher & Gordon in its Property Department. He may be contacted at email@example.com or via our website at www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.