Restrictive Covenants

Don’t think because you buy a block you can do what you like on it!

There are often restrictive covenants on land. . . . .That is “an agreement between land owners which may restrict how land may be used and developed“.

Who Is Involved?

The two parties to a covenant are:

  • The party that owns the land burdened
  • The party, or parties, that owns the land benefited by the covenant, which is likely to be either initially the developer, or the original landowner.

On a long established estate the party benefited will typically become your neighbours.

For example if there is a restriction on height of buildings your neighbour benefits from not being overlooked.

In this case if you want to extend upwards you will need your neighbour’s approval as well as planning permits.

Reasons for Covenants

There are many reasons Covenants are used, including to:

  • Protect views from being built up – most likely to be the original landowner if they still live adjacent to the site.
  • Protect the level and type of finish of all dwellings and boundaries within an estate – most likely to be the developer who wants the estate to look attractive to future land purchasers.
  • Protect the type of use that takes place on a site. No car repair and animal breeding are common.
  • Protect the level of development – single dwelling covenants are common, avoid if you may want to build a granny flat in the future.

The presence of a Covenant may only be indicated in ‘The Copy of Title’, or it may be included with your Section 32 or Vendor’s Statement. You need to be sure what restrictions are imposed before you buy.

What can you do about a Restrictive Covenant?

If you find a Restrictive Covenant on title, there are few courses of action you can take.

  1. Decide if the clauses are of benefit to you as they are likely to place similar restrictions on your neighbours.
  2. Pursue the removal of the covenant through legal channels which could be costly and difficult.
  3. Read carefully for possible ’sunset/expiry’ clauses on your covenant.
  4. Don’t buy if you don’t like the covenant, Just look elsewhere!

 

Also see Covenant Removal.

Covenant Removal

A previous post talked about the restrictions placed on block by covenants

So what if you have found the perfect block but it has a covenant restricting the amount of buildings to 50% and your dream plan will occupy more?

Well removal of covenants can be tricky and it may be best to talk with a lawyer experienced in planning matters but here is a typical process.

  1. Have a walk around the area to see if any other blocks have been changed which may be a precedent you can use.
  2. Be realistic about how much you want to change the restriction If the restriction is 50% then 60% development may be achievable. More than that and you are likely to get objections.
  3. Talk with the immediate neighbours to see if they feel your proposals are reasonable, as they are the most likely to objects. They are more likely to object if they feel their amenity is lost. ( for example their sunny backyard is shaded by a large double storey building occupying most of the lot.
  4. Put in a planning permit to the council to change the covenant which will involve a fee. Make sure you put in as much detail as possible including any precedents in the area where other lots have been developed without any detriment to the area.
  5. The council will mail out to everyone that may be affected or who also has the same restriction on their title. Typically all the estate can be considered “beneficiaries” of the covenant as they either all have the covenant or benefit from it in some way.
  6. Wait a month to see if anyone objects. If anyone does object (inside that 28 day period), they have to put that in writing and advise why they object. The objection has to show why the “amenity” of their property (value, enjoyment and aesthetics) would be harmed by lifting the covenant.
  7. The town planners will consider whether your proposal really affects the neighborhood, and if they would normally approve the development. If there have been any objections, these will be considered to see if there is any merit. Objecting just for the sake of it ( vexatious objection) is not acceptable.
  8. If you don’t get any success with Council then you can try court proceedings . . . but that could be a big bill.

Good luck!

 

For more posts about what you can build see Restrictions