Modifying Land Covenants

When you buy a property, you’ll usually have ideas about how you want to use it. Over time, those plans can change. However, sometimes a covenant on the title may limit what you can do with the land, or require you to use it in a certain way.

Covenants are rules that apply to the property and stay in place even when ownership changes. They are often put in place by developers, previous owners, or councils. Some covenants prevent certain activities (for example, limiting the number of dwellings), while others require certain standards to be met. A simple way to think of them is as promises attached to the land that every owner must follow.

The good news is that these rules are not always set in stone. The law recognises that neighbourhoods change over time, and what made sense when a covenant was created may no longer be practical today. In some situations, you can apply to the Court to have a covenant changed or removed.

The Court will look at a few key things, including:

• whether the area has changed since the covenant was put in place
• whether the covenant is now getting in the way of reasonable use of the property
• whether changing or removing it would negatively affect neighbouring property owners

A recent case shows how this works in practice. A developer wanted to change a covenant that only allowed one house on a property so they could build three. When neighbouring owners didn’t agree, the developer applied to the Court. The Court decided that allowing the change wouldn’t have a meaningful impact on the neighbours or the area, and that the neighbourhood had already evolved since the covenant was created. As a result, the covenant was modified.

This shows that it is possible to change covenants, especially where circumstances have moved on. However, going to Court can be expensive, and there is no guarantee of success.

That’s why it’s important to get good advice before you buy a property. We can help you understand any covenants on the title and how they might affect your plans.

If you’d like to talk through a property you’re considering, or need advice on an existing covenant, feel free to get in touch with our property team at Freebairn and Hehir.