Buying or bought a piece of land/property?
Often times when purchasing land or property, there are covenants which are attached to the said land or property. Covenants are binding legal obligations which are set out in the deed of a property by the vendor. They govern how the land or property can be used. They may either be positive or negative. Positive covenants, as its name suggests, require the owner of the land to do something. Negative covenants, also knowns as a “Restrictive Covenants”, restrict what the owner of the land can do with the land. Sometimes they can be very simple and other times they can be a bit more complex. Covenants on a residential property can prohibit things such as the conducting of business activity, limit exterior paint colours, limit the type of roofing material which can be used, etc. Outlined, below are a few examples of covenants:
- Not at any time to erect or cause or permit to be erected on the Lot or any part thereof any building or erection other than a dwelling house/building (not apartments or condominiums) of two storeys or less.
- Not to carry on any trade or business whatsoever, the intent being that no Lot nor any buildings erected thereon shall be used except for residential purposes (but the rental of any such buildings for residential use shall not be deemed to be carrying on any trade or business).
- No building shall be constructed other than of coral stone or reinforced concrete blocks or other such materials which may be approved by the Vendor or the Property Owners’ Association.
- The roofs of all buildings shall be clad either with clay tiles, wooden or asphalt shingles or with profile metal sheeting or other similar material but shall not be clad with galvanized metal sheets.
Generally, the main purpose of covenants is to maintain a certain standard and appearance within the neighbourhood/development.
Covenants run with land and is therefore passed from purchaser to purchaser via the title deed. When purchasing, It is therefore very important for you to find out whether there are any covenants attached to the land and to ensure that you understand the meaning of each covenant, as you will be bound by them.
How can covenants be discharged/ modified?
Covenants can be discharged or modified if all of the persons who are entitled to the benefit of the covenant agree to modify or discharge the covenant or where the Court determines that the covenant should be modified or discharged. The Laws of Barbados give the Court the power to discharge or modify covenants that are attached to the land where it is found that:
a) The covenant should be deemed obsolete due to:
(i) changes in the character of the property or the neighbourhood; or
(ii) other circumstances which the Judge thinks are material.
b) The continued existence of the covenant without it being modified would hinder the reasonable user of the land without securing sufficient practical benefits to justify the continued existence of the covenant, or the continued existence of the covenant without modification.
c) The person(s) who are entitled to the benefit of the restriction (who are over the age of 18 and have the mental capacity to make decisions) have agreed, either expressly or by implication, by their acts or omissions, to the covenant being discharged or modified.
d) The proposed discharge or modification will not injure the persons entitled to the benefit of the covenant.