The defendant is hereby ordered to demolish…” are not the words any real estate developer wants to hear from a judge. If you are acquiring property to construct, or already constructing a multi-family development or large-scale project, you should first be ensuring your plans can stand up to the increasingly watchful planning authorities and/or increasingly proactive private citizens trying to protect the sense of place of their neighbourhoods, otherwise you may be opening yourself up to significant (yet avoidable) risks.
Here are some initial due diligence steps to help limit the risk of legal and financial exposure for your development.
Analyse Your Title
It is an essential first step that you analyse the Duplicate Certificate of Title (“title”) for the property you plan to acquire. Determine if there are encumbrances which may affect your development plan, such as restrictive covenants and/or conditions that may be endorsed on the face of the title, which may need to be modified or removed.
It might even be more important to determine which other properties enjoy the benefit of the restrictive covenants, as the owners of these properties may be potential objectors, ready to bring an action against you in court if your development steps out of line. In some circumstances you may also have research the ‘root of title’ and look at the historical documents which gave birth to your title to ensure that you are fully aware of the restrictive covenants which may be affecting your right to develop the property and to help identify the persons with the benefit.
Analysing your title should also include conducting a caveat search at the National Land Agency (“NLA”), which should outline any equitable interests which may not be on the face of the title. This is particularly important when purchasing property so that you can ensure you receive the property free and clear of the [all] encumbrances. If someone is claiming to have an interest in the property, it is better to know at the start of the transaction so that an attempt can be made to resolve it earlier rather than later.
Additionally, if you are seeking financing from a bank or financial institution, a legal opinion and risk analysis from an attorney-at-law on whether the restrictive covenants can be modified/removed might assist you and the bank/financial institution in determining the viability of the development.
Check the Zoning for the Area
If all is well after analysing your title, you should next ensure that the zoning for the area where your proposed development is located allows for your type of development. Under the Town and Country Planning Act, the Town and Country Planning Authority can issue Provisional Development Orders which amongst other important regulations, outline in detail the zoning for local areas within a parish (e.g., residential, commercial, light industrial). The Order will also include considerations relating to densities, boundary setbacks and may even outline environmental concerns. Once the Provisional Order is deemed by the relevant Minister as likely to be in the public’s interest, he may issue a Confirmation for the Order.
Usually, a Provisional Development Order will take some time before it is confirmed, which means that an older Confirmed Development Order would be in force for a parish, although it might not represent how the particular area has changed over time. For instance, in 2017 a Provisional Development Order was published for Kingston and Saint Andrew and the Pedro Cays, yet there was a 1966 confirmed Development Order for Kingston. This created a grey area in determining which Order the planning authorities would/should apply when assessing the legality of a development, as a Confirmed Development Order represents the law, and a Provisional Development Order is only likely to be the law and is used as a guide.
Therefore, even though a Provisional Development Order is more recent, usually a more realistic reflection of the current community, and may have favourable zoning, you should not take for granted that it will always be used to assess the legality of your development. It is best that you to seek the guidance of attorney-at-law and to liaise closely with the relevant planning authorities to ensure your development on the right side of the law.
Pre-Check with the Relevant authorities
The National Environment and Planning Agency (“NEPA”) through its Development Assistance Centre can offer pre-application guidance to real estate developers which can assist in determining what steps may need to be taken for development approval. The local municipal corporation should also be able to offer pre-application guidance.
In Conclusion, if you are serious about limiting the risk of legal and financial exposure, whilst the above steps are a good place to start, you still need to ensure you follow-through with abiding by the relevant laws and regulations for the construction of the development and also recognizing existing private rights in communities. Having the right team of attorneys-at-law and other professionals at every stage is an essential way to avoid hearing those first seven (7) words which started this article.
Antwan Cotterell is an Associate at Myers, Fletcher & Gordon in the Property Department. He can be contacted via Antwan.Cotterell@mfg.com.jm or myersfletcher.com. This article is for informational purposes only and does not constitute legal advice.