Submitted by lsaj on
The term Restrictive Covenants, though widely used on registered titles for many years, is of very little significance to the average holder of a registered title. However, for professionals such as Land Surveyors, Lawyers, Architects and Planners, Restrictive Covenants are very familiar for many and varied reasons.
Restrictive Covenants could be described as a set of rules or guidelines placed on one property for the benefit of another or several others. Of course, these benefits are enjoyed by the owners of the properties involved. The property that carries the burden of the covenant is expected to comply with the conditioned stipulated in the covenant.
Restrictive Covenants may be placed on the title of a property by the owner of a particular property for the benefit of another or they may be placed there as a condition of approval when one applies to the Local Authority for the subdivision of land.
Many owners of property in residential subdivision do not have copies of their title for their property and so they are not aware of these covenants. They often become aware when they are required to get a Surveyors Identification Report for their property for submission to a lending institution.
The Commissioned Land Surveyor will visit the property make measurements and checks and prepare a report which often times indicate that one or more restrictive covenant has been breached. The effect of this is that the lending institution in the case of a loan will require that the breach is modified or removed before proceeding further with the loan.
At this point, most property owners are dismayed at the situation and have been made painfully aware of the importance f restrictions covenants. The breach of restrictive covenants can deny or delay property owner’s access to important benefits of owning land such as the use of land titles as collateral for loans. Breaches can prevent or delay the sale of a property.
Some breaches contravene planning laws that were aimed at the safe and proper use of roads and drainage structures, the maintenance of designed population density in residential areas and the appropriate use of land.
The main breaches that Land Surveyors encounter are those that occur as a result of buildings too close to a registered boundary, improper land use where commercial activity is taking place in residential areas and simple breaches, such as gates opening outwards when they should open inward. The erection of building boundary fence in excess of the required height, especially at road intersections is also a common breach.
It must be pointed out also that often times restrictive covenants are inappropriately placed on some titles. These are instances wherein apartment complexes, a title for individual units have covenants stating that only a single dwelling house should be on the property.
This should not be the case because the unsuspecting property owner is now burdened with a covenant that is inappropriate. Such situations can hinder the desired smooth in a land transaction.
Breaches of restrictive convenants can be prevented through various measures.
- Owners of land with registered titles should get a copy of their title from the office of titles even if they have not been fully paid for the property, at which point they should be in possession of the duplicate copy of their registered title.
- Consult a Commissioned Land Surveyor before erecting boundary walls and fences.
- Consult Registered Architects when contemplating new construction or additions to buildings. They will execute their designs taking into consideration the restrictive convenants in the registered title.
- More vigilance on the part of the local planning authority in the approval of building plans and the inspection of buildings under construction will go a far way in preventing costly covenant breaches
Prospective purchases of real estate, especially first time purchasers and those making cash purchases should always engage the services of a Commissioned Land Surveyor to prepare a Surveyors Identification Report for the property to be acquired. This will guard against purchasing property with covenant breaches.
The purchasing of a home is often the most important transaction most persons will ever undertake, and every step must be taken to ensure that it is a smooth and pleasant one that embodies a sense of personal achievement. Failure to take these steps will result in a nightmare of woes that often require great expense to remedy.