Join Australia's most dynamic and respected property investment community

Removing Covenant

Discussion in 'Development' started by klabat, 25th Aug, 2016.

Tags:
  1. klabat

    klabat Well-Known Member

    Joined:
    4th Jul, 2015
    Posts:
    69
    Location:
    Australia
    Hi guys,

    One of my blocks have a covenant which says

    " build or erect any more than one dwelling house " which is attached to each of lots 1-24 on Plan of subdivision

    but excludes Lot number 20 and 21 which allows to erect more than one dwelling which both lots have duplexes on them.

    I find it weird that out of the whole court of 24 blocks filled with new houses have two lots with two unit development. Just seems out of neighbourhood character.

    Could this precedent pave way in removing my restrictions? Is this through council/vcat or does it need to go to the supreme court from past readings...

    Has there been anyone successful of removing such covenant in Victoria? I heard that if it is a new estate there is a 10 year rule which the covenant can be challenged?
     
  2. Tufan Chakir

    Tufan Chakir Well-Known Member

    Joined:
    18th Aug, 2016
    Posts:
    75
    Location:
    Victoria, Australia
    I'm Victorian based and offer the following comments:
    You can make a planning application to the Council for the removal of the restriction. The application will be advertised and all properties deriving a "benefit" notified (that means all properties in the subdivision. If there are objections the Council WILL refuse. If taken to VCAT and the objectors participate in the process and claim they will be adversely affected VCAT will refuse - there is case law which says they must.

    But if there is no opposition it can be achieved!

    It sounds like when the subdivision was done the Council and the subdivider nominated two blocks for units, and decided all others should be single house blocks. It's a practice some Councils adopted to try and stop unit development.

    There is no "10 year rule"

    First step - talk to an independent professional planner (not a drafter or architect!)
    Second step - punt some money, make an application to the Council
     
    Perthguy likes this.
  3. klabat

    klabat Well-Known Member

    Joined:
    4th Jul, 2015
    Posts:
    69
    Location:
    Australia

    Thank Tufan Chakir,

    Very informative... Im just thinking outside the box here... What if we could get in touch with the original land owners who implemented the covenant, would they be able to take it off if negotitated?
     
  4. Propertunity

    Propertunity Exclusive Real Estate Buyers Agent Business Member

    Joined:
    19th Jun, 2015
    Posts:
    1,230
    Location:
    NSW
    If you read the 88b instrument relating to the block you will find there the organizations authorized to remove or amend any covenants - typically the original land developers and / or the local council.
     
  5. Scott No Mates

    Scott No Mates Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    5,558
    Location:
    Sydney or NSW or Australia
    Have a look at the LEP. In NSW cl 1.9a of the template suspends many restrictive covenants on the land. Victoria may have similar provisions.
     
  6. Tufan Chakir

    Tufan Chakir Well-Known Member

    Joined:
    18th Aug, 2016
    Posts:
    75
    Location:
    Victoria, Australia
    No they don't have that power and besides they are probably long gone and won't have an on-going interest. The parties who have an 'interest" are the current landowners.

    Don't be to afraid of going through the process - it's the only way to be sure.