MOST writers (of books, newspaper columns or articles) won’t readily admit that the greatest challenge to writing involves something as fundamental and crucial as coming up with an introduction, even a topic. I admit this was my challenge and so the temptation to sample or rework Mr Clifton Brown’s now famous tagline to draw the reader into the mundane (but important) discussion below was almost unbearable. In light of the relative oversampling of Mr Brown, I just could not bring myself to do it. I could not in all good conscience have this article titled: “Nobody canna stop it — Restrictions on property rights”. No, to use that title would be simply too corny and so without any witty opening lines, I have decided to jump feet first into a short examination on certain restrictions or incumbrances on property rights.

Many Jamaicans see property ownership as an absolute right. In reality however, many ‘restrictions’ are often attached to ownership. If proprietors of registered land were to examine their duplicate certificates of title, they would see after the description of the property, a long list of incumbrances. Such incumbrances include: restrictions on how property is to be used; whether or not it can be subdivided; whether or not fences or hedges can be built, if they can be built; the distance they are to be built from the road. Other so-called restrictions or incumbrances are not readily discernible from the mere perusal of a title.

The Kingston and St Andrew Corporation (KSAC) has been in the spotlight recently in its drive to demolish buildings built in breach of, among other things, the Town and Country Planning Act. Even though this drive has been welcomed by some (especially the adjoining neighbours of those structures that were built in breach), others have expressed alarm at what they regard as a restriction on property rights. Undoubtedly, insofar as the KSAC, other parish councils and even the National Environment and Planning Agency (NEPA) are empowered to restrict how land and property is used, their powers appear to many, as restrictions on property rights. Many proprietors have waged long battles with these agencies in an effort to use their lands in the way that they think best.

However, agencies such as the KSAC, NEPA and parish councils exist to protect our property rights, not fetter them. They do so within a legal framework which is aimed at ensuring sustainable land use and the protection of the physical environment from misuse and premature development through the establishment of development plans. The cornerstone of their legal framework is the Town and Country Planning Act which defines “development” as “the carrying out of building, engineering, mining or other operations in, on or over land, or the making of any material change in the use of any buildings or other land”. Planning permission is required for development to one’s property. There are however certain types of developments where one may not need to apply for planning permission. They include:

i) house extensions and additions, including, but not limited to, enclosing existing balconies, verandahs and some roof additions;

ii) putting up certain buildings or structures on the land around a house, for example garages, garden sheds and swimming pools;

iii) erecting fences, walls and gates;

iv) erecting satellite dishes, and television and radio aerials; and

v) decoration, repair and maintenance of structures.

As in everything, there are as many exceptions as there are rules and so with respect to building additions or extensions, planning permission will be required where that extension or addition would be nearer to any highways, public roads or footpaths than the nearest part of the “original house”. Planning permission is also required if the extension or addition exceeds certain height and volume limits.

Before making any changes to your land or acquiring land for development, I would strongly recommend consulting with your local planning authorities (in Kingston and St Andrew, the KSAC and in other parishes, the local parish council) or other land professionals, such as an attorney, to determine whether or not planning permission is required, and if it is, what exactly is required.

Corrine Henry is an Associate at Myers, Fletcher & Gordon and is a member of the firm’s Litigation Department. Corrine may be contacted via corrine.henry@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.