It’s natural to assume that since you own your property, you can do what you like with it – subject to planning, of course. But this might not necessarily be the case, particularly if there’s a restrictive covenant hiding in the small print of your certificate of title.
What’s a restrictive covenant?
Restrictive covenants are legally binding agreements between neighbouring parties that limit what you can or cannot do with your property. The restrictions can vary, but some of the most common include:
- Preventing you from building more than one property on your parcel of land – which essentially prevents any subdivision of the land
- Limiting what materials you can use to construct the external walls of the property
- Limiting the fence height at the front of your property
While some restrictive covenants have an end date, most don’t. So the restrictions will remain until the covenant is removed, even if the property is then sold. That’s because, in legal terms, restrictive covenants ‘run with the land’. This means they apply to the property, not the specific owner who made them. As a result, all subsequent owners will automatically become legally bound to the agreement when the title to the land is transferred to them.
In Victoria, if you are looking to sell your current property and there is a restrictive covenant on the title, you are legally required to disclose it in your vendor’s statement.
How do you remove a restrictive covenant?
There are several ways in which restrictive covenants can be varied or removed in Victoria. But the two most common are:
- Requesting an amendment to the planning scheme
- Applying for a planning permit relating to the covenant
Amending the planning scheme can be a complex and lengthy process. So this method isn’t usually used for removing covenants from individual lots of land – unless other changes to the planning scheme are also proposed.
Using a planning permit to remove a restrictive covenant
You can remove or vary a restrictive covenant by applying for a planning permit. You’ll need to fill out a form and submit supporting documents including a recent copy of your title and covenant at your local council.
Your request will then be advertised to notify your neighbours and other interested parties. This will typically include a notice being:
- Given to all owners and occupiers of land who benefit from the restrictive covenant
- Placed on the site subject to the application
- Published in the local newspaper
If any objections are received, your application may be refused.
That’s because under section 60 (2) of the Planning and Environment Act 1987, a planning permit to remove or vary a restrictive covenant won’t be granted unless the council is satisfied that any benefiting landowner won’t suffer material detriment, including financial loss or loss of amenity.
Freya Southwell is a development lawyer at Sutton Laurence King Lawyers.
Planning legislation is complex and can be a labyrinth to unravel. Get the expert advice you need to make sense of it all by calling Sutton Laurence King on 03 9070 9810 or filling out this online form.