What Are Property Covenants?
When you're buying or developing property in Australia, it's important to understand any property covenants attached to the land. These legal conditions can affect how you use, build on, or even maintain the property. Ignoring them could lead to legal disputes, fines, or costly changes down the track.
What Is a Covenant on a Property?
A property covenant is a legal restriction or obligation recorded on a property title. It typically affects how the land can be used or developed and is often put in place by a developer, local neighbourhood, or previous owner.
There are two main types of covenants:
Restrictive covenants: Also known as a negative covenant, it limits how you can use the land (for example, no second dwellings, no commercial use, minimum house size).
Positive covenants: Require the landowner to do something (for example, maintain a fence, preserve vegetation).
In most cases, covenants are registered on the title and are legally binding on current and future owners.
Property covenants can have both positive and negative effects on landowners. On the positive side, covenants can protect environmental features and heritage sites, contributing to a better living environment and community wellbeing, ultimately increasing property value. However, covenants can also be restrictive, limiting a landowner’s flexibility to develop or use their property as they wish. This can lead to frustration or additional costs if desired changes or improvements conflict with the covenant’s conditions. While covenants provide important protections, they also require careful consideration before purchasing or developing land.
Why Do Covenants Exist?
Covenants are used for a range of purposes in Australian property law. One common reason is to maintain and preserve environmental features such as native bushland, wetlands, or significant trees. In some cases, covenants are used to control development density, building height, or architectural style to ensure new projects align with the established character of a suburb. Covenants also may be put in place to protect the heritage or cultural significance of a particular site.
Common Examples in Australia
A covenant that prohibits building anything other than a single dwelling on a block.
A restriction preventing the removal of specific trees or vegetation.
A rule against using certain materials like zincalume on roofs or fences.
Prohibiting the construction of buildings that will block a scenic view.
Are Property Covenants Enforceable?
Yes. If a covenant is registered on the title, it's legally binding. Breaching a covenant can lead to enforcement action from other property owners, developers, or local council; sometimes including court orders or damages.
It's important to note that even if a council grants planning approval, you may still breach a covenant if your project conflicts with it.
Can You Remove or Vary a Covenant?
Yes, but it can be complex and time-consuming.
Lifting a property covenant in Queensland can be challenging and often involves multiple steps. Generally, you'll need agreement from all affected parties, which may include the original party who imposed the covenant, the developer, and Titles Queensland. If consent can't be obtained, you may need to pursue a court application. It’s strongly recommended to get independent legal advice to assess your situation and clarify whether the covenant can be legally altered or removed. Success isn't guaranteed, especially if someone objects.
How to Check for Property Covenants
Before purchasing or developing property in Queensland, check for covenants by requesting a title search through the Queensland Titles Registry. Information about covenants and other restrictions is typically included in the contract of sale or available through property searches. It’s also wise to consult your conveyancer or property lawyer to review any registered covenants and assess how they may impact your plans for the property.
Building Covenants
Building Covenants, are covenants that are usually prepared by a developer in order to maintain visual consistency within a residential estate. For instance, by requiring consistent building materials, roofing styles, or landscaping standards. Building Covenants are not registered on title, and are enforced through Contract, usually requiring a purchaser of land from a developer to ensure they pass on the covenants through any subsequent sale to a third party, with that party facing possible legal action if they fail to pass on the covenants, and the Building Covenants are later breached.
We strongly suggest that if you have ever purchased a property from a developer or otherwise have Building Covenants affecting your Property, you speak to a lawyer before selling the Property.
Seek Advice Regarding Covenants
Property covenants can have a big impact on your rights as a landowner. Whether you're planning to build, subdivide, or renovate, it’s crucial to check for any registered covenants and understand their implications before proceeding.
When in doubt, always seek advice from a qualified property lawyer or conveyancer to avoid unintended legal issues. If you're looking for advice regarding covenants, please reach out to us at Bradley and Bray.
Disclaimer: This article is general in nature and does not constitute legal advice. If you require legal advice in relation to your personal circumstances, you must formally engage our firm or another firm to provide legal advice in relation to your matter. Bradley & Bray lawyers take no responsibility for any use of the information provided in this article.
