Covenant

[satos]

Firstly Hi to everyone on this forum.
I am a new member having just joined this site.
I want to develop my block by demolishing the existing single dwelling house and erecting in it's place 3 double story townhouses. I live in the outer northern suburbs of Melbourne.
My title lists a covenant which restricts the building of one single dwelling on the block. This covenant has been on the title for the past 60 years
On further research the majority of the houses in my street (40) have this same restrictive covenant.
Is it possible to remove this covenant and what is the process on removing it.
Cheers.

 

[geoffw]

When I was in England there was a covenant on our house from 100 years earlier restricting us from selling alcohol from the premises.

I didn't try to get that covenant lifted so I don't have any first hand experience. But here is some information on getting covenants lifted in Victoria.

 

[jrc77]

GeoffW,

Our PPOR has a convenient preventing the brewing of alcohol Doesn't say anything about selling it though ...

Jason

 

[geoffw]

Our PPOR has a convenient preventing the brewing of alcohol Doesn't say anything about selling it though ...

So do you have the home brew police sniffing around your house with yeast detectors?


*** BEEP BEEP BEEP! COVENANT BROKEN! ***

 

[jrc77]

There's was a drug lab around the corner so they're too busy sniffing up there

Jason

 

[satos]

Thanks for all that humour out there.
Seriously I am after some information from other people who have gone through the process or know someone who has on removing a covenant (single dwelling) from a title.
Thanks geoffw for the link to the government site.

 

[thatbum]

Thanks for all that humour out there.
Seriously I am after some information from other people who have gone through the process or know someone who has on removing a covenant (single dwelling) from a title.
Thanks geoffw for the link to the government site.

Why do you think you can remove it? I imagine its there for a reason and it would be a long and uncertain process - probably with the odds against you since the majority of the local area also has the same covenant.

 

[perthguy]

Why do you think you can remove it? I imagine its there for a reason and it would be a long and uncertain process - probably with the odds against you since the majority of the local area also has the same covenant.

I don't know about the odds, but covenants can be removed:

An application for a planning permit can be made to Council under Section 60(5) of the Planning and Environment Act 1987 to remove or vary a restrictive covenant created before 25 June 1991.

Hopefully this link will work: http://www.boroondara.vic.gov.au/~/... Dwelling Covenant Policy _ FINAL VERSION.pdf

 

[thatbum]

I don't know about the odds, but covenants can be removed:

Procedurally there are certainly mechanisms to be able to remove them. Its the merit of the application that is the hard bit.

I believe the overarching principle is that the parties benefiting from the covenant will probably have to consent to its removal (from my rusty knowledge of property law).

That's the hard bit. For something like a single dwelling covenant, I imagine it would need the agreement of the neighbours/council/general local community.

Obviously get your own legal advice, but I would be very surprised if it wasn't an uphill battle.

 

[perthguy]

Procedurally there are certainly mechanisms to be able to remove them. Its the merit of the application that is the hard bit.

I believe the overarching principle is that the parties benefiting from the covenant will probably have to consent to its removal (from my rusty knowledge of property law).

That's the hard bit. For something like a single dwelling covenant, I imagine it would need the agreement of the neighbours/council/general local community.

Obviously get your own legal advice, but I would be very surprised if it wasn't an uphill battle.

Since it is a council application, I wonder if there are any reports in council meeting minutes. Might give some idea as to whether the applications are supported or refused?

P.S. I don't imagine it would be an easy process or whether it will be successful.

 

[satos]

Thanks everyone for your very informative replies.
It looks like it will be a slim to no chance of getting it removed due to the majority of houses in the street having a single dwelling covenant. The way I read it is if just one neighbour objects it is game over.

 

[Nash13]

Sounds like a deadwood covenant and it is likely that some of your neighbours may already have had theirs removed at one stage or another.

There are 3 process that you are able to remove or vary the covenant, the simplest is the planning permit process through Council. As a few others pointed out the process is quite a burden for the applicant and success is not guaranteed!

Send me a PM if interested and I can point you on the right track

 

[satos]

Thanks Nash.

 

[fernfurn]

There is a convenant on the type of building materials to be used in any buildings or extensions to the new house we have bought but when I rang the council, they said they couldnt enforce it and particularly as the original builder is dead

 

[Nash13]

^ Enforced through the courts if one of the parties benefited by the covenant takes exception. Council is only able to enforce the covenant when their is a trigger for them to do so... e.g planning permit etc..

 

[fernfurn]

I was talking to the council about extending the existing deck when they said they couldnt enforce the covenant