Restrictive Covenant

Question 1

Section ______of the Registered Land Act in Belize allows a registered proprietor of land affected by restrictive agreements to apply to the court to modify or totally extinguish those agreements.

Answer 1

99

Question 2

In order to be successful in obtaining such an order, the registered proprietor must satisfy the court that one of the three statutory grounds provided for in section 99 has been met in the circumstances of their case.

What are the 3 grounds

Answer 2

(a) that, by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which the court thinks material, the restrictive agreement ought to be held to be obsolete; or

(b)that the continued existence of the restrictive agreement impedes the reasonable user of the land for public or private purposes without securing practical benefits to other persons or, as the case may be, will, unless modified, so impede such user; or

(c ) that the proposed discharge or modification will not injure the person entitled to the benefit of the restrictive agreement.

Question 3

How is the application commenced?

Answer 3

The application is commenced by a fixed date claim form with an affidavit in support. Both documents must be filed in court.

Question 4

What must be done prior to the lodging of the claim form and affidavit?

Answer 4

the applicant should serve notice of the nature of the application he/she is making on the owners of the adjoining lots and other owners in the neighbourhood.

if you do that then you should mention in your affidavit that you have done so identifying the names of the persons, you have served and also attaching evidence of such service.

You should also serve the local planning authority in the area.

Question 5

What is included in the Fixed date Claim Form?

Answer 5

The Fixed date Claim Form will Set out:
- the existing restrictions affecting the land as they are presently worded on the land certificate
- the manner and extent to which the applicant wants them modified and /or extinguished
- Request that they be modified/extinguished as set out
- Cite the grounds on which the application is made

Question 6

The Affidavit will be detailed and will contain the following information:

Answer 6

• The name address and occupation of the applicant (the registered owner)and the nature of his interest in the land
• Description of the land and a copy of the land certificate should be attached
• The full text of the restrictions as they appear on the land certificate.
• Manner in which restrictions were imposed and date of their imposition.
• Extent and manner in which the applicant wants to extinguish or modify the restrictions.
• Statutory grounds on which the applicant relies to support his application
• Names and addresses of the persons entitled to the benefit of the restrictions ( it is usual to name a few of the owners who live adjacent to the applicant)
• Local Authority affected by the restrictions

Question 7

What happens after the claim is filed?

Answer 7

Once the claim form and the affidavit are filed in the court you will be given a date for the hearing.

Question 8

who should be served with the claim?

Answer 8

When you file your fixed date claim form and your affidavit, you should serve these on the owners of the adjoining lots and other persons in the neighbourhood.

The local planning authority

Question 9

What happens on the first hearing of the claim?

Answer 9

At the hearing the Judge will hear your claim. You ought to bring with you to court your land certificate

The Judge may also ( whether there are objections or not ) depending on his view of the circumstances of the matter,make orders regarding what further notices (if any) are to be served (generally to persons to benefit from the restrictions). He may also require the placing of an advertisement of notice of the application in a widely circulated local newspaper.

Once there has been compliance with these orders of the court, the applicant would need to lodge with the court a letter stating that he has complied with these orders, and depending on the orders that were made, he would also lodge, an affidavit of service of notice of the application on the additional persons requested by the judge, as well as an affidavit of publication of the notice, exhibiting the tear sheet from the newspaper on which the advertisement appeared. His letter would also request a date for the final hearing.

Question 10

what happens at the final hearing?

Answer 10

At the final hearing, if there are no objections then the court, in exercise of its discretion may issue the order sought and state therein the date that it shall take effect.

Question 11

What happens if there are objections filed

Answer 11

If there are objections filed by the residents who have been served, the judge will proceed with the matter as if it were a trial

Question 12

What is a restrictive covenant?

Answer 12

A restrictive covenant is a solemn agreement between land owner wherein one landowner agrees to restrict the use of his land in some way, for the benefit of land owned by another

Question 13

What are the characteristics of a Restrictive covenant?

Answer 13

• They must be “restrictive”, i.e., negative. They cannot require the landowner to do something. They can only prevent her from doing something.
• They must be for the benefit of some other land.
• They run with the land, meaning that they bind and benefit successive landowners and not only the persons who were parties to the original contract. They are therefore an exception to the privity of contract rule.

Question 14

Who may apply?

Answer 14

The legislation refers to any person interested in land affected by a restrictive agreement.

Question 15

Ground one for modification/discharge is obsolescence.
What does this mean and what would the court consider?

Answer 15

Obsolescence - the purpose for which the covenant was imposed can no longer be achieved.

This ground requires the court to consider three things:
a. What is “the neighbourhood”;
b. Whether the character of the neighbourhood has changed; and
c. If so, whether the relevant covenant is obsolete as a result.

Question 16

What is the neighbourhood?

Answer 16

The test that is usually used to determine what constitutes a neighbourhood is the “estate agent’s test”: “What does a purchaser of a house in that road or that part of the road expect to get?” Do you expect to get a private single family dwelling house or an apartment in a complex.

Question 17

In the case _____________ the neighbourhood comprised thirty two lots, 17 of which had multi-family dwellings on them, 13 had single family homes and 2 were unoccupied. The court held that on those facts there had been a significant change in the character of the neighbourhood and this had made the covenants obsolete. In the judge’s opinion -because of the preponderance of multi family dwellings in the neighbourhood, it was no longer possible to enjoy the benefits the covenants were seeking to achieve.

Answer 17

Re: 30 Dillsbury Avenue Claim No. 2006 HCV 00856

Question 18

In the case of ______________ - the relevant neighbourhood comprised approximately 80 lots and only 15 had multi-family dwellings. The court held that the changes were not significant enough to have made the covenants obsolete. {The judge at first instance actually visited the site and said that apart from the 15 changed lots - the style arrangement and appearance of the majority of the lots remained unchanged and this allowed the benefits of the covenant to be enjoyed by the residents. In his opinion the covenants were still effective. His decision was upheld by the Court of Appeal}

The modified lots were not concentrated in any one area, but are dotted over the neighborhood;

Answer 18

Central Mining and Excavating Limited v Peter Croswell and other 30 JLR 503

Question 19

What does case law suggest must be looked at in ascertaining the character of the neighborhood?

Answer 19

The case law suggests that in ascertaining the character of the neighbourhood one must look at the style, arrangement and appearance of its houses as well as the social customs of the inhabitants.

Question 20

True or False.

The mere fact that changes have taken place in the area does not by itself constitute evidence that the agreements have been rendered obsolete.

Answer 20

True.

Question 21

What is the test to determine whether the changes to the character of the neighborhood should render the agreement obsolete?

Answer 21

The case law shows that the test is whether the extent of the changes that have taken place, is so significant that it can be said that the original purpose for which the agreements were imposed can no longer be achieved.

The case law in this area makes clear that the question comes down to one of degree.

Question 22

in order for Ground #2 to be satisfied, what must be proven?

Answer 22

that the covenants in their unmodified state impede ALL reasonable user of the land.

that the use permitted by the covenants is no longer a reasonable use

that the restrictions do not confer on any person any practical benefits

Question 23

In the case ___________________ the neighbourhood comprised 9 lots and 7 of those lots had single family villas on them. The applicant wished to erect 3 blocks of apartments and applied to the court to modify the covenants. She relied on this ground [ground 2] but did not succeed as the Privy Council found that the use permitted by the covenants was still a reasonable use.}

Answer 23

Stannard v Issa [1987] AC 175

Question 24

Based on the caselaw, what amounts to injury to the person benefitting from the restriction?

Answer 24

The cases in this area show that the courts interpret injury to include not just pecuniary injury. The injury may be physical such as an increase in traffic or noise or the injury may be intangible such an intrusion on one’s privacy.

Question 25

What must be proven to show that no injury would be caused to the person benefitting from the restriction?

Answer 25

that the covenants are no longer effective and the practical benefits they were intended to provide were no longer being enjoyed by the residents. In other words, the covenants have become obsolete. If this can be proven – it would then be possible to successfully argue that as the persons are no longer enjoying the benefits the covenants were intended to achieve and then the proposed modification /discharge would not cause any injury to them.

Question 26

in the case of _________________ -where the applicant argued that the covenants had been rendered obsolete by changes in the neighbourhood and that the discharge of the covenants would not cause injury. The court agreed on the evidence that the covenants were obsolete and then went on to say that as the purpose of the covenants could no longer be achieved, the benefits they were intended to provide could no longer be enjoyed and a consequence of that was that the proposed discharge being sought by the applicant would not injure the residents

Answer 26

Re 15 Kensington Crescent