Property Law – Building Covenants and Restrictions: What They Are and How They Can Affect You

From time to time purchasers will buy an existing property with the intention of carrying out building work on the property and which can include additions to the existing house, pergolas and swimming pools etc. Most of the time these additions and extensions are permitted subject to obtaining the usual development approval from the local council. Occasionally however, upon checking the title search for a property it will be noted that there may be restrictions or covenants on the title to the land which restrict the erection of improvements within a certain area on the land or within a certain distance of the boundaries of the property.

These covenants and restrictions may have been imposed for a number of reasons (proximity to services, proximity to neighboring dwellings or in some circumstances uncertainty as to the suitability of part of the land for building purposes). The restriction or covenant in question may have been imposed by a previous owner of the land or in some cases the restriction may have been a requirement of the local council. Sometimes a contrary council approval (in other words a council approval that permits you to carry out the extension addition etc notwithstanding the terms of the restriction) can overcome the problem however, the existence of the restrictions and covenants can later pose problems for subsequent purchasers and their lenders as to whether the improvement is permitted to remain on the land.

In some cases, it may be possible to take steps to vary or extinguish the building covenant or restriction before the purchase is completed so as to ensure that the proposed improvements to the property can be carried out at some later stage with no problems.

In view of the above, it is important to carefully check the title for a property being purchased in order to ensure that there are no building covenants or restrictions which adversely effect the property. If you are purchasing a property with future building plans in mind and which would influence your decision to buy the property if you are unable to carry out those building proposals, this should be raised so that careful consideration can be given to the best means of resolving the problem in your favor.

For more information about restrictive covenants and how you can ensure that your rights to freely use your land are protected, please contact Mark Nolan, Peter Bahlmaan, Alex Beagley or Anna Masi of our Property Law Team