A restrictive covenant is an agreement between landowners to restrict the use or development of one parcel of land to create a benefit with respect to another parcel of land or at times a public authority. Restrictive covenants may be created by:
- a deed setting out the terms of the restrictive covenant;
- a transfer of land form containing the words creating the restrictive covenant; or
- plans of subdivision under part IVA of the Transfer of Land Act.
Examples of restrictive covenants include covenants that:
- limit the use and development of a lot to a single dwelling or a maximum number of dwellings;
- restrict the type of buildings that can be built on a parcel of land (e.g. in relation to height, colour or setbacks); and
- restrict the type of building materials that can be used for new buildings and fences; or
- restrict activities on the land such as clearing it or conducting certain business activities on it.
Restrictive covenants should bedistinguished from:
- easements, which are rights to a benefit with respect to another’s land;
- memorials and notifications, which are notices registrable by public authorities on a certificate of title pursuant to legislative powers to notify others of a characteristic of the land or restriction on dealing with the land; and
- caveats, which are notices of another’s interest in the land that prohibit the dealing with the land without consent of that person.
Restrictive covenants may be registered against the certificate of title of a parcel of land. Such covenants attach to the land and subsequent purchasers of the land are bound by the covenant that attaches to the land. Landgate is responsible for the registration of restrictive covenants and should be contacted if queries arise.
Restrictive covenants are generally removed by:
- agreement between the parties having an interest in the covenant under section 129B of the Transfer of Land Act 1893;
- an order of the Supreme Court under section 129C of the Transfer of Land Act 1893;
- where a restrictive covenant was created under part IVA of the Transfer of Land Act 1893, on the application to the Registrar of Titles by the landowner of the burdened or benefited land, or by the local government or public authority benefiting from the covenant, with the consent of all relevant persons;
- an application made to Landgate in accordance with section 129BB of the Transfer of Land Act 1893, which provides a further mechanism by which restrictive covenants for the benefit of a public authority made under section 129BA of the Transfer of Land Act 1893 may be extinguished or varied; or
- the provisions of a local planning scheme.
Rowe Bristol Lawyers is able to provide advice and assist you in creating, varying or extinguishing a restrictive covenant where possible at law.
If you require legal advice in relation to creating, varying or extinguishing a restrictive covenant, please contact us to arrange a meeting so that we may consider your specific circumstances.
The above information is provided as general information only and should not be relied upon as legal advice. The accuracy of this information may have changed from the date when it was published.