Restrictive covenants gaining popularity, keep estates serene

Kenya: Some homeowners are being slapped with law suits for interfering with the ambience of exclusive estates.

Most of the investors bought homes in gated communities before ‘abusing’ the serenity of the posh areas by constructing extensions (servants quarters) in breach of prior agreements.

Others even set up mama mboga kiosks (make shift vegetable shops), salons and car wash dens in areas designated for mini-shopping malls.

The affected homeowners are receiving legal letters and eventual law suits for breaching restrictive covenants they signed before buying the houses.

Restrictive covenants limit the manner in which homeowners use their property for the benefit of adjoining neighbours.

Once made, the agreements bind even third parties who were not party to the original bargain as a property right.

Even the Court of Appeal has set precedents on judgments against property owners who have breached binding restrictive covenants they never signed originally.

Prospective investors in property should therefore confirm whether there are such binding legal agreements before purchase.

It is the responsibility of property lawyers to read sale agreements between the lines and advise their clients in detail before buying property.

Prospective property buyers should also ask questions to conveyancers they have engaged as investors have a right to make informed decisions.

Legally, purchasing such property means the owner is contractually giving up certain property rights that were entered into by the original seller. The restrictive covenants can also be enforced by developers and county councils to protect property values and residents from cutting down trees or destroying historic elements.

Others could be preserving serenity of a neighbouring property, restricting the number of pets and prohibiting installation of solar panels.

Legal rights

Restrictive covenants are a servitude — legal rights a person acquires over another person’s property.

Other categories of servitude are profits and easements — agreements that allow a property owner to use the adjoining land of his/her neighbour for benefits.

 

In areas where restrictive covenants do not exist, neighbours can be a nuisance — even in estates where homeowners have private compounds.

Restrictive covenants are gaining popularity with the current influx of golf estates and gated communities around the country like Vipingo Ridge in Kilifi, Thika Greens in Muranga County, Migaa in Kiambu County and Sergoit Golf and Wildlife Resort in Eldoret. Restrictive covenants will ensure that serenity is maintained in these emerging golf estates.

— The writer is an Advocate of the High Court