- Restrictive covenants registered on a Jamaican title bind not just the original owner but all future owners of the land
- Common covenants restrict use to residential purposes, limit building height, or prohibit further subdivision of the land
- Neighbours with the benefit of a covenant can apply for an injunction to halt a breach and claim damages for loss suffered
- Developers who acquire land with restrictive covenants may apply to the Supreme Court to have them modified or discharged
- Buyers should have their attorney identify all covenants on the title before purchase to understand the limitations on the land
When land is sold in Jamaica and a covenant is included in the transfer, that covenant is registered on the certificate of title and becomes a permanent condition that binds every future owner of the land unless it is formally discharged by the Supreme Court. Restrictive covenants in residential subdivisions commonly prohibit the use of lots for commercial or industrial purposes, limit the number or height of buildings that can be erected, require that only one dwelling be built per lot, or prohibit further subdivision. These conditions are imposed by the original developer to maintain the character of a residential scheme and to protect the investment of all purchasers within the development. A covenant that restricts a lot to residential use means that the owner cannot lawfully operate a shop, workshop, restaurant, or any other commercial activity from the property, regardless of whether the local authority would otherwise have no objection to such use. The breach is not a technical irregularity: it can significantly affect the amenity and property values of neighbouring lots whose owners have the benefit of the covenant.
Enforcement of Covenants and Developer Obligations
A neighbour or other person with the benefit of a restrictive covenant can apply to the Supreme Court for an injunction requiring the breach to be remedied — for example, requiring a structure built in breach of a height restriction to be reduced, or requiring a commercial activity to cease. The court can also award damages for the loss in amenity or property value caused by the breach. Developers who acquire land within an established scheme subject to restrictive covenants face the same obligations as any other owner and cannot simply ignore covenant conditions on the grounds that they intend to develop the land for a different use. Where a developer genuinely needs to use land in a way that is inconsistent with existing covenants, the proper route is an application to the Supreme Court to modify or discharge the covenants, a process that requires notice to all persons with the benefit of the covenants and consideration of whether modification would injure them. A developer who proceeds in breach of covenant without obtaining a discharge risks injunctive proceedings that can halt a development project at a late stage and at substantial cost.
Buyer Due Diligence on Covenant Conditions
Buyers should instruct their attorney to identify and explain all covenants endorsed on the certificate of title of any property they are considering purchasing, before any commitment is made. A buyer who intends to operate a business from the property, to build an additional structure, or to subdivide should confirm with their attorney that the title covenants permit those activities, and should not rely on assurances from the vendor or the vendor’s agent that the covenants are not enforced or are spent. A covenant that has not been breached in the past does not thereby cease to be enforceable: it remains on the title and can be enforced by any future neighbour who acquires the benefit of it. Buyers who discover after purchase that their intended use is prohibited by a covenant can apply to have the covenant discharged, but this is an additional cost and time commitment that should have been accounted for in the purchasing decision.
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