OF all the towns on the island, Portmore, St Catherine, is among those with the most property breaches.

Many registered owners of these properties often find themselves in a dilemma when they wish to dispose of their asset because they have performed any of the following:

• extended the original structure without the Portmore City Municipality’s approval

• built a boundary fence without relying on a Surveyor’s Identification Report

• built an external staircase to the side of their property to provide access to the roof for either a clothes line or a balcony

• built a shed as a laundry room or storeroom to the back or side of their property

• incorporated the Government sidewalk as part of their property for parking

• added an oversized eaves around roof edge.

• built neighbouring wall which prevent natural flow of water.

Before carrying out any of the abovementioned acts, property owners should investigate their registered titles to inform themselves of the restrictive covenants, since these actions may be considered prohibitive and can result in a breach of the restrictive covenants and an encroachment or a breach of your neighbour’s rights.

Restrictive covenants are provisions that limit the use of land so that the value and enjoyment of adjoining land can be preserved. An encroachment is where a property owner violates their neighbour’s rights by building or extending a feature and crossing onto their neighbour’s property. There is a right to natural drainage; therefore, water flowing naturally across the surface of the land is permitted to flow downhill naturally onto your neighbour’s land. Frequently, we see our neighbours building fencing without consideration to natural flow, which result in flooding of neighbouring property.

Approvals

Unfortunately, a large percentage of registered proprietors in Portmore carry out construction on their properties without approval or obtaining a Surveyor’s Identification Report, which often results in a property nightmare when a proprietor wishes to sell the property or obtain an equity loan against it. It is important to note that proprietors need permission to:

• erect a building

• make additions/alterations and repairs to a building

• erect temporary buildings on the property

• change the use of the building, for example, from residential to commercial

• demolish a building.

A Surveyor Identification Report is a document showing the physical boundaries, which are checked on the ground against the registered boundaries on the plan. Without this document, a property’s boundary fence or building eaves can result in a breach or encroachment.

If an encroachment exists, it is difficult for a purchaser to obtain finance without a commitment from the seller to remove the encroachment. This is usually done by demolition or adverse possession, but this depends on how long the encroachment has existed and whether it exists on the government roadway or your neighbour’s property.

In the case of a breach, an application must be made to the Supreme Court of Judicature of Jamaica for an order to modify the breach.

The government agency responsible for building approvals and permits is the Portmore City Municipality, and all applications must be made through the municipality when a proprietor needs to construct, modify, extend or renovate any structure. Building permits are valid for only six months after the date of issuance. If a proprietor does not intend to build within the six-month period after issuance, then he or she must return the plans to the municipality and have them revalidated.

National Housing Trust

Owing to the vast number of breaches and encroachments existing in Portmore, the National Housing Trust has changed its mandate from accepting a letter of undertaking from an attorney-at-law alone to requesting both a no objection letter from Portmore City Municipality along with an undertaking from an attorney-at-law to rectify the breach of covenant. Where a breach exists and no building approval has been obtained, the municipality may withhold the no objection letter until an as built plan is presented and approved, thereby delaying the progress of a transaction.

Other Breaches

Other forms of breaches are often seen, such as:

1) the conversion of verandahs as shops or other types of businesses

2) the use of properties as churches

3) the use of properties as a schools

4) the use of properties as mechanic shops

5) parking large utility vehicles and boats in pathways and sidewalks.

For a property owner to carry out these acts, he or she must seek an order from the court to modify the restrictive covenant along with the Portmore City Municipality’s no objection letter. Failure to do so constitutes a breach, and neighbours who are offended by the prohibited actions of their neighbours can report these acts to the Portmore City Municipality or seek a court order to stop the breaching party.

Implications

In addition to the problems described above related to selling or purchasing properties, property breaches can also result in the following:

1) They can prevent a proprietor from accessing bank loans because it is a requirement that loan applicants have a registered title that is free and clear of all encumbrances.

2) The court may require proprietors to remove the offending structure by way of demolition.

3) A prospective purchaser may walk away from a purchase.

4) A cease and desist order can be issued for shops, bars, churches or schools if the correct steps were not taken for these kinds of businesses to operate.

5) Your neighbour may seek compensation or initiate court action for damage caused to property due to flooding or any other offending acts.

6) In accordance with the Town and Country Planning Act 1957 (Amended 1999), a stop notice and an enforcement notice can be served on an owner/occupier, and if he or she fails to obey the notices, a fine of up to $1 million can be imposed, and thereafter a fine of $5,000 per day if it continues. In the event of a court conviction, the property could be forfeited to the Crown.

Venice Williams-Gordon is Justice of the Peace and Attorney-at-Law/Partner at Lewis, Smith, Williams & Company – a lawfirm. She can be contacted at vwilliams@lswlegal.com