Anybody understand this caveat?

[dublin_101]

Hi All,

I want to buy this property, with view to develop a unit in the backyard.

It's a perfect site which was first released in 1989. The original house at the front is fine and the backyard and driveway are fine for a 3 bedroom unit (I believe).

The problem is I'm having trouble understanding this caveat and will try and seek advice on Monday.

Can anybody offer any of their thoughts of the attached screenshot?

My obvious question: does this caveat restrict me from building at the back?

Thanks in advance.

 

[AlmostBob]

The second house has to be brick and tile, and large enough, not a granny flat
the fence has to be low enough to be pretty at the street, and seeable over

 

[dublin_101]

The second house has to be brick and tile, and large enough, not a granny flat
the fence has to be low enough to be pretty at the street, and seeable over

So you believe it IS NOT restrictive of a second dwelling? Thanks.

 

[Terry_w]

It is not a caveat but a covenant.

 

[dublin_101]

It is not a caveat but a covenant.

Sorry about that - I can't seem to change the heading either.

You have any thoughts on the covenant Terry? Thanks.

 

[DaveM]

Covenant states that you shall not build anything other than a brick veneer home with a minimum 107sqm floor space, and a garage, shed etc. They were designed to ensure a consistent build for a subdivision so you did not end up with clad or timber or relocated homes.

Old restrictive covenants like this may be overridden by current planning laws.

 

[Perp]

I read it differently to AlmostBob; I think the covenant was written before there was any dwelling on the land, so the minimum 107 sq m brick-and-tile dwelling referred to in the covenant, I suspect refers to the primary dwelling that hadn't been built at the time of the covenant being written.

It may or may not be interpreted as saying that you can't build a second dwelling, you'd have to get legal advice.

I assume, then, that local planning laws would allow construction of a second dwelling?

 

[dublin_101]

I read it differently to AlmostBob; I think the covenant was written before there was any dwelling on the land, so the minimum 107 sq m brick-and-tile dwelling referred to in the covenant, I suspect refers to the primary dwelling that hadn't been built at the time of the covenant being written.

It may or may not be interpreted as saying that you can't build a second dwelling, you'd have to get legal advice.

I assume, then, that local planning laws would allow construction of a second dwelling?

Correct - it was when the estate was opened up.

My main concern is that is it restrictive of a second dwelling.

Local planning for the zone make it perfect for a second dwelling. I will seek legal advice, but by then I may lose the property to another buyer (not the worst thing in the world).

 

[dublin_101]

Covenant states that you shall not build anything other than a brick veneer home with a minimum 107sqm floor space, and a garage, shed etc. They were designed to ensure a consistent build for a subdivision so you did not end up with clad or timber or relocated homes.

Old restrictive covenants like this may be overridden by current planning laws.

Yes I believe this was the new estate rule at the time. The estate is now 25 years old and I have heard that 25 years is a long time for any covenant to stay in effect. That said, I'd like to know the thoughts of other experienced ppl (like you) as to whether its worth buying the place or not.

 

[DaveM]

Make your offer subject to removal of covenant, or confirmation the lepp/sepp overrides

Where I live (penrith lga) there is a bv single dwelling covenant from the original subdiv in the 80s, but there are a number of houses with either clad or bv secondary dwellings, so there is obviously a way to work around it.

 

[belvoir]

What council are you in?

If you are in NSW and the LEP has the correct provision then all restrictive covenants are void or 'set aside' if the restricted use is permissible under the council LEP or relevant SEPP code.

As in, if you get DA approval for the granny flat the covenant means jack ****.

Also, a covenant is not grounds to object to a DA as it is not consideration in planning unless the council has placed the covenant.

NSW did it this way to stop private hands controlling what can and cannot be built. What can be built should be the sole right of the council and state government.

 

[dublin_101]

What council are you in?

If you are in NSW and the LEP has the correct provision then all restrictive covenants are void or 'set aside' if the restricted use is permissible under the council LEP or relevant SEPP code.

As in, if you get DA approval for the granny flat the covenant means jack ****.

Also, a covenant is not grounds to object to a DA as it is not consideration in planning unless the council has placed the covenant.

NSW did it this way to stop private hands controlling what can and cannot be built. What can be built should be the sole right of the council and state government.

thanks for the tips.

bad luck for me: the vendor accepted an offer last night.

I'm not too worried about missing out, although it more and more seems like i should have just put in a normal offer and subject to "whatever" ...and then rushed to get advice by monday/tuesday. nevertheless, erring on the side of caution is something i'm happy to go by.

the council is casey, in victoria. thanks.

 

[knightm]

the thing is with covenants that there needs to be someone to enforce them. In strata developments there is a current company who exist and meet regularly to ensure things are running well. That is the kind of group who might stop a devepment thats outside of character.
In freehold developments the developer who does the subdiv can enforce the covenants but what happens when they are no longer around?
I built in an estate where the original developer had already gone into receivership. The legal advice I got was basically build what you want anything council will approve based on their normal guidelines, not the covenants. Just be aware that if you dont meet the covenants technically the other owners who have could lodge a class action against you if they felt strongly enough.

Given most of them had already made variations outside of the covenants (they were quite restrictive) I figured they were unlikely to ever do this. I adhered to about 80% of them and not the others. I have had no problems.

 

[belvoir]

the thing is with covenants that there needs to be someone to enforce them. In strata developments there is a current company who exist and meet regularly to ensure things are running well. That is the kind of group who might stop a devepment thats outside of character.
In freehold developments the developer who does the subdiv can enforce the covenants but what happens when they are no longer around?
I built in an estate where the original developer had already gone into receivership. The legal advice I got was basically build what you want anything council will approve based on their normal guidelines, not the covenants. Just be aware that if you dont meet the covenants technically the other owners who have could lodge a class action against you if they felt strongly enough.

Given most of them had already made variations outside of the covenants (they were quite restrictive) I figured they were unlikely to ever do this. I adhered to about 80% of them and not the others. I have had no problems.

Generally in most cases anyone who benefits from the covenant has the right to enforce it. Usually the covenant applies to all lots in the subdivision so any neighbour who benefits can enforce the covenant.

This is generally only a problem if you are out of NSW and if you are trying for example to put a childcare centre in the street and the covenant restricts any business use on the land. If one neighbour gets angry its easy for them to convince the other neighbours to cough up a couple of hundred dollars each to prevent a child care centre that can 'reduce their properties values' by thousands of dollars.

 

[dublin_101]

Generally in most cases anyone who benefits from the covenant has the right to enforce it. Usually the covenant applies to all lots in the subdivision so any neighbour who benefits can enforce the covenant.
.

Does the above mean that the council itself do not enforce or police covenants? Eg when a plan application is submitted for a development... Does the council look at the covenants.?

 

[belvoir]

Does the above mean that the council itself do not enforce or police covenants? Eg when a plan application is submitted for a development... Does the council look at the covenants.?

100% correct, Council does not even look at the title, UNLESS the covenant has been placed on the land by council.

A covenant is a private matter not a planning matter.