WA subdivision - Restrictive Covenant

[chibs]

Hi,

Has anyone come across Restrictive Covenant clause on the Certificate of Title when subdividing ?

We are building a house behind an existing house at the moment and about to start the strata application process. Our surveyor made us aware of a Restrictive Covenant clause (dated 1959) in our Certificate of Title, which states that we are not permitted to construct more than one residence on the lot. So by subdividing, we are potentially developing the lot in a way that is not permitted under the conditions of the Restrictive Covenant. The implication is that we might encounter problems at Landgate Titles Office when applying for new titles.

We have contacted the Shire, who suggested us to engage a solicitor to see if there is any beneficiaries to the plan. Or alternatively, we can request the Council to write Landgate a letter stating they are aware of the existence of the Covenant clause. However, this does not free us from any legal implications that might arise in the future.

Has anyone come across similar clause when subdividing in WA? What do you do to address the situation ? Does anyone know any solicitor who might be able to advise us on this issue ? Our solicitor doesn't want to deal with any subdivision-related work..

 

[thatbum]

It really depends on the specifics of each property. It might be really easy to deal with, or it might not be. Generally these covenants were placed on a number of properties in that subdivision at the time - so someone at council should be able to give you some indication of how the local ones get dealt with.

Still, its not really something I would touch generally, because it has the potential to be a real hassle.

 

[Tano]

When does the covenant expire?

I heard that council cannot enforce the convenant and only the developer who created the covenant and the affected parties (neighbours) can enforce it. I am not sure how they will be notified by the act of subdividing. Can anyone chime in and answer this question?

 

[janglesey]

You could try calling Jules Lewin at Charthill Legal for advice. He specialises in property law in WA. His phone number is 0417 921 428. Good luck with it.

 

[westminster]

chibs, here is a good fact sheet from City of Gosnells. Although your land is probably not City of Gosnells, it outlines some good facts on how to go about removing a single dwelling covenant

http://www.gosnells.wa.gov.au/files...a/Restrictive_covenants_information_sheet.pdf

 

[chibs]

Thanks all for your input.

When we bought the property, we noted the clause but did not think it would be an issue as the house next door has been subdivided. The zoning definitely allows the property to be subdivided. The selling agent at that time also said not to worry too much as the covenant was added years back before rezoning took place(but then again, his job is to sell the property ).

@tano, the covenant doesn't have an expiry date
Thanks @janglesey for the contact.
Thanks westie for the link, we are in fact in city of Gosnells. We will give this a go, hopefully the covenant can be removed.

We might also try contacting the owners of the neighbouring properties, if we can get their contacts. Surely the covenant affects them too...