Outdated covenant

I'm interested in a property for subdivision purposes but have come across an agreement on the original transfer of land, that states the transferrees must only effect one dwelling on the land and shall stay in it for 5 years. This covenant is dated all the way back to 91.

Although of course the covenant still stands I beleieve it is likely to be deemed outdated by council?
Can anyone else comment on the nature of this?

The house has units and subdivided land within close proximity
 
Sounds like an estate, think I've seen such covenant on an s32 I looked at for a friend for a property in Narre Warren. I think they usually put these in to protect the estate from over development. Not sure it's going to be easy to wipe it off. I'd bypass this property if you're specifically looking for a development block.
 
Probably the first thing to consider is the reason for the covenant.

If it was really an outdated planning condition then you may have a chance.

The issue will probably be if the neighbours consider they are benefited by the covenant and don't want to be next to a subdivided block.

there are a few thoughts about covenant removal at this link http://www.anewhouse.com.au/2012/01/covenant-removal/
 
Just spoke to lawyers and an agent who is a friend of mine who works in the area.
The covenant was set in place way back in the day when they were cutting the land and wanted all houses to look the same as they were sold of as only land, so the covenant restricted what could be built on the land to set up the initial look of the area.
As far as removing the covenant it is a process similar to that of subdivision (advertising etc) The council cannot refuse the lifting of the covenant, only beneficiaries of the covenant (Those who have bought land on the covenant)
Within the street the house is on someone has bought two house and got plans through to build 14 apartments. Relatively safe to say that if that gets through a simple two lot subdivision will be alright
 
here is the wording of the covenant

'The transferees hereby for themselves their heirs executors administrators and transferees the registered proprietor for the time being of the land hereby transferred covenants with urban land authority persuant to the provisions of section 14 of the urban land authority act 1979 that

(1) there will not be erected on the land hereby transferred any buildings other than one house and usual outbuildings

Such house will not have less than 75% of all external walls of brick/ brick veneer

Such house will be for their own occupation

They shall occupy said the said house for a period of at least five years
 
Is the covenant registered on title?
Are you the original buyer or a transferee?
If a transferee did you agree to the terms when acquiring the property?
 
Is the covenant registered on title?
Are you the original buyer or a transferee?
If a transferee did you agree to the terms when acquiring the property?

1) Yes it is
2)Not the original buyer, just a transferee
3)Yes an application must be submitted to lift the covenant
 
In NSW if the council LEP has the correct clause then all covenants created by a private individual can be 'set aside' if the planning law allows for the use that is being restricted by the covenant.

I.E, no business can run on the land, however if the LEP allows childcare centres then you can have a childcare centre. The DA approval, if given, sets aside the covenant. Council will not look if there is a covenant because it is not a planning consideration. Once you get DA approval you can ignore the covenant, no need to have it removed.

Only time this doesn't work is if the LEP is old or council benefits from the covenant.
 
In NSW if the council LEP has the correct clause then all covenants created by a private individual can be 'set aside' if the planning law allows for the use that is being restricted by the covenant.

I.E, no business can run on the land, however if the LEP allows childcare centres then you can have a childcare centre. The DA approval, if given, sets aside the covenant. Council will not look if there is a covenant because it is not a planning consideration. Once you get DA approval you can ignore the covenant, no need to have it removed.

Only time this doesn't work is if the LEP is old or council benefits from the covenant.


The process is similar here in Victoria, you submit the removal of the covenant with your planning permit. Because the council does not benefit from the covenant and it goes against the current planning scheme they cannot and will not enforce it as they are not a beneficiary.
Only beneficiarries so those who have also bought into the covenant can enforce it
 
The process is similar here in Victoria, you submit the removal of the covenant with your planning permit. Because the council does not benefit from the covenant and it goes against the current planning scheme they cannot and will not enforce it as they are not a beneficiary.
Only beneficiarries so those who have also bought into the covenant can enforce it

What if you don't need to put a planning permit in? Can you submit a removal of the covenant with the building permit?
 
What if you don't need to put a planning permit in? Can you submit a removal of the covenant with the building permit?

Yes so basically all it is, is an extra form attached to the planning permit.
It then gets advertised just like a normal planning permit and is of course open to objections

Not a massive thing
 
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