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SGIS2
SGI2001
SGIS 2022 - 2023
Module: Land Law 2
Module Code: LAW3007
Course Work Title: Group 1, Quest. #4
Submission Date: 29/03/2023
Lecturer:
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When there is a change in ownership or possession of land, several duties may come with its
ownership, one way that this may be true is through restrictive covenants. In this essay I will
discuss the act that governs restrictive covenants and the sections that may affect some who is
possessing new land. Firstly, we must define what is a restrictive covenant. “A restrictive
covenant is a solemn agreement between a Vendor and Purchaser where the purchaser covenants
with the vendor of land that he will not do certain acts in respect of the land and which ensure for
the benefit of the vendor.” 1
Secondly, it must be determined whether or not the client would be bound by this covenant.
Under most circumstances, the doctrine of privity of contract would mean that the client
wouldn’t be bound by covenant that he/she wasn’t a part of, however with restrictive covenants,
that may not be the case. According to Preston and Newsom’s Restrictive Covenants Affecting
Freehold Land, 10th Edition, at common law, no one else is bound by the restrictive covenant
when the covenant is personal between the original covenantor and covenantee as it doesn’t run
with the freehold land. This means, when the client acquires the land there is no privity of
contract or estate between them and the original covenanting parties. For the burden of the
covenant to run with the land, the equitable jurisdiction of the court is invoked, as decided by
Lord Chancellor Cottenham in Tulk v Moxhay, 41 ER 1143, to create an equity which is binding
on the land and enforceable against it for the protection of the covenantee’s land. It can be said
that it is now settled law that for the Objectors, who are not original convenantees, to assert that
they are entitled to the benefits of the restrictive covenants they must establish that the covenant
is negative, that the covenant must be for protection of the land or part of a scheme and the client
1
(Restrictive Covenant, n.d.)
must also be given a notice.2 So if the person who would benefit from the restrictive covenant
isn’t the original covenantee, the client may be able to claim that he/she doesn’t have a pact with
the current benefiter. However, if it is decided that the covenant is to the benefit of the land then
it may still apply to the client.3
The act that governs its creation and removal is The Restrictive Covenants (Discharge and
modification) Act which is Law No. 2 in 1960 Laws of Jamaica which is “A LAW to provide for
the discharge, modification and interpretation of restrictive covenants affecting land, and for
other matters connected therewith.” 4
One section of this act that may concern the client is section 4 that deals with an option that the
client may take if the covenant is to be enforced. If it is decided by the benefiter of the covenant
to take action to enforce this covenant on the client, the client can choose to apply to the court to
be granted leave in order to apply to the judge in chambers where he/she may appeal for the
covenant to be discharged or modified as it is in section 3 of the act.
Section 3 of this act deals with who has power on the application of the Town and Country
Planning Authority or of any person interested in any freehold land affected by any restriction
arising under covenant. In this section, it is stated that the Judge of Chambers would be the one
to preside over the case if the client ever chooses to attempt to discharge or modify the covenant.
One reason why a restrictive covenant, according to section 3(1)(a) of the act, may be modified
is; if the character of the property or the neighborhood or if other circumstances in the case
which the judge may deem material changes, in cases like these the covenant may be deemed
2
(Newsom & Paton, 2020)
(Chin Jen Hsia, Sarah and Hall, Marvin et al v Lyn, Martin and Lyn, Melissa et al, 2020)
4 (NEPA Environmental and Planning Agencies, 1960)
3
obsolete. Another reason why discharging or modification, according to section 3(1)(b), can be
done is if the continued existence of such restriction or the continued existence without
modification would be an impediment to the user of the land without sufficiently justifying the
continued existence by proving the benefits of the existing covenant. Thirdly, a restrictive
covenant as stated in section 3(1)(c) can be discharged or modified if the person who benefits
from the restriction agrees to modify or discharge the covenant. Finally, if the proposed
discharge or modification doesn't harm the person entitled to the benefits of the restriction the
restriction may also be revised.
Another thing to be considered is, under section 3(3) of the act, that states if the client will not
be required to compensate the one entitled to the benefit of the restriction financially when
he/she were to attempt to modify or discharge the covenant then: any order made under that
section will be binding to all persons, whether ascertained or of full age or capacity or not, or
whether they are entitled or are capable of being entitled to benefit of these restrictions whether
or not they were parties in the proceedings or have been served with notices.
Section 5(a) and 5(b) tells us that the supreme court would have power on the application by
motion of the of the Town and Country Planning or anyone interested to declare whether or not
the freehold land is affected by the restrictions, to what extent is it restricted and who will have
the ability to enforce it.
Finally, the client should know that whether or not the land is registered under the Registration
of Titles Act or not, this act will still apply to them.
In conclusion, a restrictive covenant is an agreement to not do certain acts in respect of the land
and which ensure the benefit of the seller. This covenant is governed by the The Restrictive
Covenants (Discharge and modification) Act which is Law No. 2 in 1960 Laws of Jamaica which
helps us under how and under who’s authority these covenants are enforced and in what ways the
client may be affected by this covenant.
Bibliography
(n.d.). Retrieved March 30, 2023 from THE RESTRICTIVE COVENANTS (DISCHARGE AND
MODIFICATION) ACT [25th February, 1960.1 1. This Act may be cited as the Restrictive
Co:
https://websitearchive2020.nepa.gov.jm/new/services_products/subsites/planning/docs/r
estrictive_covenants.pdf
(1960, February 25). From NEPA Environmental and Planning Agencies:
https://websitearchive2020.nepa.gov.jm/new/services_products/subsites/planning/docs/r
estrictive_covenants.pdf
Chin Jen Hsia, Sarah and Hall, Marvin et al v Lyn, Martin and Lyn, Melissa et al, 2017 HCV
02997 (The Supreme Court of Jamaica January 21, 2020).
Newsom, G. L., & Paton, E. (2020). Preston and Newsom: Restrictive Covenants Affecting
Freehold Land. Sweet & Maxwell.
Restrictive Covenant. (n.d.). Retrieved March 30, 2023 from National Land Agency:
https://www.nla.gov.jm/content/restrictive-covenant