Undisclosed Restrictive Covenants in Jamaica: When What You Can Build Is Less Than What You Were Told

• Restrictive covenants are registered encumbrances that bind all future owners of a parcel.
• Common covenants restrict building type, height, density, setbacks, and permitted use.
• Covenants are disclosed in the title search; failure to disclose them is seller misrepresentation.
• Breach of a registered covenant can result in an injunction to demolish or modify structures.
• Some covenants can be modified or discharged by application to the courts or by the covenantee.

A restrictive covenant is a legally binding condition registered against a land title that imposes a restriction on the current and all future owners of that parcel. In Jamaica, restrictive covenants are commonly imposed by developers when they sell lots in a subdivision, as a way of maintaining the character of the development — ensuring, for example, that all homes are built to a minimum standard, that lots are not further subdivided below a minimum size, or that the land is used for residential purposes only. Once registered, these covenants run with the land indefinitely and bind every subsequent owner, whether or not that owner was aware of them at the time of purchase.

Problems arise when sellers or agents either fail to disclose registered covenants or actively misrepresent the development potential of a property. A buyer who is told they can build a four-unit rental development on a lot that carries a single-residential-use covenant may complete the purchase and commence construction before discovering the restriction. At that point, the original covenantee — usually the original developer or a homeowners’ association — can apply to the court for an injunction requiring the demolition of any structure built in breach of the covenant, with costs falling on the buyer who built unlawfully.

How to Check for Covenants Before Purchase

Restrictive covenants are disclosed in a full title search, which any competent conveyancing attorney should conduct before advising a buyer to sign. Buyers should specifically instruct their attorney to report on all registered encumbrances and to explain the implications of any covenants for their intended use of the property. Where the buyer intends to develop or subdivide, the attorney should confirm that the planned use is consistent with all registered restrictions before exchange of contracts. Information on registered encumbrances can be obtained through the NLA’s eLandJamaica portal at elandjamaica.nla.gov.jm.

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