What is a Covenant?
A covenant is a private written agreement between the seller and purchaser restricting what the land can be used for, for example, limiting development to construction of a single dwelling or controlling the types of materials that can be used for new buildings or fences.
The issue of covenants and their removal frequently raises complicated questions of property law and planning law. While Council officers can be of some assistance in respect to the procedure, potential applicants will need to obtain independent advice about the best approach for them to adopt their prospects of successfully varying or removing a restrictive covenant.
Applications to remove or vary a restrictive covenant
When considering any planning permit application, Council is required to determine whether the application might contravene a restrictive covenant which affects the land.
If an application is made for a planning permit to vary or remove a restrictive covenant, Council will require the applicant to provide certain information and follow a specific procedure in respect to their application.
Council will require applicants to provide a letter from a suitably qualified property lawyer, land surveyor or like professional who confirms the existence of the covenant and indicates which other land and landowners have the benefit of the covenant, together with copies of the relevant title documents.
Often restrictive covenants are created in the transfers of lots on a plan of subdivision (the division of an original title into smaller lots). In these cases Council will require, in addition to the above letter, the following:
- A copy of a full search of the parent title of the land from which the subject lot was transferred, that includes a list of transfer dates of each and every lot in the subdivision and the corresponding plan that shows which lots relate to the specific transfer number
- The list of transfer dates highlighted to indicate all that were transferred after the transfer date of the subject property. These properties have the "legal benefit" to the covenant
- A copy of the original plan of subdivision marked to indicate all original properties that legally benefit from the covenant (as determined from the above point). Council will then establish which of the original lots have been subdivided (if at all)
- A clear and accurate description of how the covenant is to be varied, including reference to the relevant volume and folio and the instrument of transfer numbers. This is not necessary if the covenant is to be removed