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Easements and Restrictive Covenants

Easements and restrictive covenants are common, and mostly do not affect the value of property. But some really do! Once easements or covenants are on a property’s Certificate of Title they are difficult to remove and you are very likely to need to seek expert legal advice.

If you are buying a property:

Carefully check the Certificate of Title of the property you are thinking of buying, and make sure you understand exactly what any easements or restrictive covenants mean with regard to use of the land, value of land, and re-saleability of land.

Some covenants and easements affect the transfer of property when it is being sold. If there is another person or organisation that has an interest in the property (additional to any mortgage) that caveat has to be formally withdrawn before the land can be sold.

The best thing to do is engage a lawyer to ensure all relevant property checks are carried out, the contract is appropriate and the sale will proceed smoothly (without unexpected and probably expensive surprises!).

Restrictive Covenants: (A restriction on the use of land)

This is a contractual obligation imposed by the seller on the buyer of land to do or not do something. For example, height restrictions, determined minimum and maximum floor size of dwelling, landscaping requirements, and so on. These restrictions are enforceable on subsequent buyers of the property.

Can I remove or modify a restrictive covenant?

Yes – but you have to apply to the Supreme or County Court, and objections may be made to your application. Generally you may be able to remove or modify if the covenant has become unnecessary/out of date for a reasonable user of the land, and not harm the party benefiting from the restriction in any significant or real way.

Easements: (A right applying to land)

An easement is an area of land on the title that is set aside, and gives a right to a person (who is not the land owner) to use that area for a specific purpose. Common easements include neighbour right-of-way for access to their property, shared driveways, access to utilities and so on.

Certain easements disallow the owner from building on that area of the land, even though they own it.

Can I remove an easement? Or build over it? Can I create a new easement?

Speak to us to see if you can build over or under a particular easement in your property, or if you need to apply to remove it. It generally depends on whether your proposal to build causes substantial interference to another’s rights.

If you go ahead and build on the easement and you do interfere with the rights of the benefitting party, they are able to destroy the structure to gain access to the easement without having to ever compensate you for the damage. And legal action can be taken against you.

You can also add easements to your land by applying to register an easement – we are happy to help there too.

This is general advice only. Liability limited by a scheme approved under Professional Standards Legislation. 

Published Aug 13, 2018