Where a certificate of title is encumbered by a covenant, it is to be noted that this is a binding restriction that binds any and all owners of the land, present and future.
Covenants can be produced by either incorporation into a Transfer of Land (at a time when the property is being transferred) or in a plan of subdivision.
Councils will not usually grant planning or building permits that contravene the intent of a covenant. This is despite the fact that the covenant is usually only enforceable by other lot owners (as specified in the covenant). Regardless, councils will typically abide by the covenant.
Legal processes do exist for the removal or variation of covenants. However, contrary to much public folklore, their removal or variation can be problematic. We never advise a purchaser to buy a property on the basis that the purchaser intends to remove or vary the covenant unless and until the purchaser has obtained the advice of a qualified planning consultant and, preferably, a professional with experience in dealing with the particular council in question. Such advice should extend to the likely time and cost of removing or varying the covenant and the likelihood of success.
The removal or variation of any covenant will, typically, impact, other lot owners in the subdivision. Accordingly, courts and tribunals will not, generally speaking, remove or vary a covenant lightly.
If you are considering buying or selling a property and would like more information on our conveyancing and property law services, please contact our office on 03 9450 9400 to speak to an experienced professional.