Urgent Feedback for Covenant on property

[Bodha]

How difficult is to get rid of covenant on property build in 1990 ?
Contract of sale had only mention of some "covenant on property " but details were not included in it ,solicitor later on found conditions as below.

1) only single dwelling is permitted with usual outbuilding
2) property must be for own occupation
3) you must occupy it for 5 years as your home
4) must not use it for display purpose

covenant was issues by "places Victoria" ,though after follow up they have issues letter advising of removal of 2 & 3 condition.

Intend is to hold property for 5-7 years then subdivide

is condition 1 hard to be get rid of ?

or is it simple to tackle it as part of planing permit ?

 

[DaveM]

Sounds like an old housing estate covenant, your soli can get it lapsed

 

[westminster]

I'm going to assume Victoria because of the covenant.

Some single dwelling covenants can be hard to get rid of so go into this with eyes wide open

Was it not in your section 32? Have you exchanged contracts?

Your Soli can handle it but it's not a guarantee as the people benefitting the covenant (ie the neighbours can object). So if you haven't already exchanged contracts then have a good think and get some advice about the likelihood of it being lifted.

There are 2 ways - information from http://www.boroondara.vic.gov.au/-/... Dwelling Covenant Policy _ FINAL VERSION.pdf

1. Application to the Supreme Court pursuant to section 84 of the Property Law Act 1958.
Section 84 of the Property Law Act 1958 gives the Supreme Court of Victoria the power, upon the
application of any person interested in any land affected by a Restrictive Covenant, to wholly or
partially discharge or modify the restriction.
The Supreme Court is required to be satisfied that:
a) The restrictive covenant is obsolete or its continued existence would impede the
reasonable use of the land;
b) All persons benefitting from the covenant have agreed (whether expressly or by
implication by their acts of omissions) to the variation or removal;
c) The variation or removal of the covenant will not substantially injure any persons entitled
to the benefit of the covenant.
These are narrow legal criteria which do not take wider planning issues into account.
This process is expensive and is only available to persons having a legal interest in the land affected
by the covenant.
2. Application for a Planning Permit to Vary or Remove a Restrictive Covenant.
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. This
section of the Act provides that a responsible authority must not permit the removal or variation of a
restrictive covenant unless it is satisfied that:
a) The owner of any land benefitted by the restriction (other than an owner who, before or
after the making of the application for the permit but not more than three months before its
making, has consented in writing to the grant of the permit) will be unlikely to suffer
detriment of any kind (including perceived detriment) as a consequence of the removal or
variation of the restriction, and
b) If that owner has objected, the objection is vexatious or not made in good faith.
This effectively means that where a bona fide objection is made by an owner of any land benefitted
by the covenant claiming any detriment (including perceived detriment), a planning permit for removal
or variation of a covenant cannot be granted by the responsible authority.

 

[Prop_Perspectiv]

We just had a look into this for a block of land that we wanted to move a house to (covenant stating only new materials to be used).

Best bet to go through the planning permit process to vary or remove restrictive covenant. Those who benefit from the covenant can protest though and I was told that if you get an objection they are pretty much always upheld.

I would have a look in the immediate area - are there any other subdivided blocks close to this one? Are the block sizes out of proportion to the other areas in close proximity? If there is precedent in the street you might get away with it. Personally, I would make sure this was still a profitable deal if the worse case scenario happens and you can't get the covenant lifted.

 

[Scott No Mates]

When was the LEP created? If it's is newer than the subdivision then you may get support from council as well if they pushed the density controls.