Land convenant

[hdollars]

Hi all

We recently purchased a property in Frankston area, a 3 bed house with 650sqm of land.

Before we looked at the property it was confirmed by the Real estate agent that potentially we can build a unit at the back of the house and rent it out seperately(have this in writing).

Being able to build a second dwelling on the land was a major criteria in the property we aspired, therefore we agreed to buy this property. At the time of signing the contract they confirmed(the lady spoke to her boss/legal adviser) who saw the section 32 and confirmed that building a second dwelling at the back was possible STCA.

However recently while looking for a builder/surveyor for this project, we found that the land has a convenant where only one dwelling is allowed. This was later confirmed by our conveyancer.

As inexperienced first home buyers we didn't confirm with our convenyacer about a possible restriction/convenants before singing the contract because we blindly trusted what the real estate agents said and throughout we were under the belief that building a second dwelling was not an issue at all.

Further inquiries with our conveyancer revealed that removing this covenant is not only time consuming but can be a very expensive exercise.

My question to all the experienced posters here is do we have any grounds to take any action against the real estate agent for giving false information and misleading us or is it entirely our responsibility as buyers to check these things prior to signing the contract and we just have to regret not doing proper checks for the rest of our lives.?

 

[buzzlightyear]

The process of the removal of the covenant would be no more time consuming than a planning permit but the issues can become quite nuanced. Speak to the town planning department at the Frankston City Council 9784 1888 first. However you can still submit planning permit for subdivision as per normal, so STCA advice is still technically correct IMO ie potentially after removing the covenant. I know that is cold comfort to you now.

It wouldn't surprise me however that the REA didn't know. But how do you prove that someone did know and deliberately gave you false and misleading information? You may still want to approach the officer in effective control and approach the REIV (if they are a member) and see what come of your complaint.

Personally however, I think the time should be spent on working with the authorities on being able to subdivide. They are not locked in stone forever. Whereabouts is the property and what are the types of the properties are around you?

 

[hdollars]

The process of the removal of the covenant would be no more time consuming than a planning permit but the issues can become quite dnuance. Speak to the town planning department at the Frankston City Council 9784 1888 first. However you can still submit planning permit for subdivision as per normal, so STCA advice is still technically correct IMO ie potentially after removing the covenant. I know that is cold comfort to you now.


what we learned from the conveyancer is that the covenant can either be removed by the supreme court(costly) or by sending letters to all the beneficiaries(?) of the covenant and getting their no objection letter. or at least that's how we interpret it!


It wouldn't surprise me however that the REA didn't know. But how do you prove that someone did know and deliberately gave you false and misleading information? You may still want to approach the officer in effective control and approach the REIV (if they are a member) and see what come of your complaint.

Will give that a go..


Personally however, I think the time should be spent on working with the authorities on being able to subdivide. They are not locked in stone forever. Whereabouts is the property and what are the types of the properties are around you?

It is a bit comforting to hear that sub division is still possible, the house is in Carrum downs to be precise under Frankston council.

Thanks for your advice so far..any more suggestions to get around this hurdle will be much appreciated.