What is a Restrictive Covenant and how does it affect me?

You may be looking to purchase a new property or, alternatively, may be looking to develop your current property when you notice there is a covenant registered on the Title. You may not know what a restrictive covenant is, or the impact it may have on your current or future property. So, what should you do?

What is a restrictive covenant?

A restrictive covenant is an agreement between parties which restricts the use and benefit of one parcel of land for the benefit of other parcels of land. In most cases, once these agreements are entered into, they are registered on Title. They are not removed once you purchase the property.

If you are looking sell your current property, you are required to disclose any existing covenants in your Vendor’s Statement. For more information about property disclosure, please refer to our previous article.

What are some common restrictions included in a restrictive covenant?

There are a number of common conditions imposed by restrictive covenants. These can include:

• A restriction which prevents you from building more than one property on the parcel of land. This essentially prevents any subdivision of the land.
• A restriction which limits what materials you can use to construct the external walls or façade of the property.
• A restriction that prevents more than a single storey dwelling being constructed on the parcel of land.
• A restriction regarding fence height at the front of the property.

There are also instances where a property may have multiple covenants registered on Title.

Are covenants registered on Title indefinitely?

Without any attempt to legally remove the covenant, it will continue to be registered on Title. However, it is possible to have a registered covenant removed.

There are three methods that can be used to remove a covenant:

1. Applying to the Supreme Court for an order under the Property Law Act 1958 (Vic),
2. Amending the Planning Scheme, or
3. Applying for a Planning Permit.

In most cases, applying for a Planning Permit will be the preferred approach.

How can Sharrock Pitman Legal assist?

We have an Accredited Specialist in Property Law and we are well equipped to assist with the removal of restrictive covenants. Most commonly, this will involve a Planning Permit application. Once the application has been drafted, we are able to prepare detailed submissions to your local council as to why the covenant should be removed. If the application is approved, we can then assist with finalising the removal of covenant from your Title. This will legally remove the restrictions that were on Title.

If you require assistance, please contact Principal and Accredited Specialist in Property Law, Andre Ong, on (03) 8561 3317 or alternatively fill in the form below.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

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