Removing Covenant

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?

 

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

 

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?

 

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.

 

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.

 

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.

 

Any stories or experience on removing covenant. I have seen some removed but also some which had objections and the application was unsuccessful.

It is a big risk if the application is unsuccessful as basically the land size even at 1000sqm has really not much value with single covenant.

 

Depends on council and area. Happens all the time in Monash.

 

It is first and foremost dependant on whether there are objections - this is not like the usual planning process. Effectively with covenant removal the legislation is such that an objection based on amenity will veto the process.

 

Hi, who do I need to contact to interpret covenant and it’s implication?

Who do I need to involve to remove the covenant?

Planning to buy my first IP with subdivision potential in the future.

Thank you

 

A property lawyer

 

Probably not...the covenant benefits other parties - it is now them that will be "affected" or "benefit". Going back to the original developer won't help

 

Sorry did not mean to repeat the question asked by the OP

What will be involved in removing a single dwelling covenant? Is it a dead card and should look other property?

I heard from a friend, recently cost him around $95,000 to remove a covenant, I actually forgot to ask him which one........ is it possibly the single dwelling one perhaps?

 

It depends on the particular set of circumstances - location, age of the covenant..etc. The most simple, and cost effective way is to apply for a planning permit for its removal. If there are no objections this will usually happen. If there are objectors, it depends how far they wish to take it. There are strategies to be aware of so the whole thing doesn't get out of hand

$95K - just wonder what the circumstances really were and why it got to that level. Sometimes figures are thrown around that are not necessarily "true"

 

One big paper bag.