Important concepts about restrictive covenants
Covenants can vary in coverage
• You must provide the Court with evidence about who enjoys the benefit and the burden of the covenant through a colour coded cadastral plan obtained from a professional title searching service along with the essential circumstances of the application.
• Sometimes only one lot is burdened and one lot benefits. Sometimes there may be many lots burdened and many lots benefiting.
• In new housing estates it is common for the subdivider to place a restriction on each lot in the estate (perhaps to allow only one house to be built on each lot) so that all or many of the lot owners benefit from the covenant and may enforce that covenant on each other.
Identifying the benefiting land can take time
• A registered restrictive covenant is recorded on the title of the burdened land but is not recorded on the title of benefiting land. If the benefited land has been subdivided and re-subdivided, it may be necessary to search the original plan of subdivision and earlier titles to identify the benefited owner
Covenants are complex
• Some covenants may be difficult to understand as they often use legal words and unfamiliar jargon. Covenants that appear similar may in fact use slightly different words, resulting in different restrictions on the use or development of the land. Each covenant must be individually interpreted.
Registered restrictive covenants ‘run with the land’
• This means that when land that is burdened by a restrictive covenant is sold, the new owner(s) will be bound by the covenant.
Restrictive covenants exist indefinitely unless they have a lapse date
• Most restrictive covenants do not have a lapse date, which means that the covenant will bind successive owners of the burdened land for as long as it remains on title, and the covenant will remain on title until it is removed.
Restrictive covenants may be removed or varied
• There are three main ways this can be done (see below for details). Each method can take time, may be costly and involve certain requirements or ‘tests’ that can be difficult to satisfy.
Seek independent expert advice
• It is important to understand the exact terms of a covenant, what land is burdened, and who may enforce the covenant. You should seek independent advice from a legal practitioner or property law professional who is experienced in dealing with restrictive covenants.
How to find a restrictive covenant
• A registered restrictive covenant is recorded on the certificate of title of the burdened land. The details of the covenant may appear on the face of the title, or be set out in a separate document that is referred to in the title.
Land titles are kept by Land Victoria and can be searched for a fee. Land Victoria is located at:
Land Information Centre
Level 9, 570 Bourke St
Melbourne 3000, Victoria
Phone: 03 8636 2831
Opening hours are 8.30am to 4.00pm Monday to Friday
You can visit the Land Information Centre to search a title and obtain other information. You can also purchase a title online
If you cannot get to the Land Information Centre in person, a title searcher can be engaged to obtain the information.
Who enforces restrictive covenants?
• The land owners who benefit from a restrictive covenant are responsible for enforcing the covenant. Local councils are not responsible for this.
• If there is a breach of a restrictive covenant, the person who owns land benefiting from the covenant can take action through the courts against the owner of land subject to the covenant.
How to remove or vary a restrictive covenant
There are three main ways to remove or vary a covenant:
• By applying to the Supreme Court for an order under section 84 of the Property Law Act 1958.
• By amending the planning scheme under Part 3 of the Planning and Environment Act 1987.
• By applying for a planning permit under Part 4 of the Planning and Environment Act 1987.
Key issues in Covenant Modification or Removal:
• Process for a s84 application to vary or remove a restrictive covenant;
• Caution in the scope of development;
• What is the range of modification now supported;
• Absence of objectors not the test;
• What happens in contested hearing;
• What is the test for contested modifications of Covenants;
• What you need to do as an objector;
• Who pays for an objection of Covenant;
• What is the benefit of Calderbank offers.
Daniel Epstein of Counsel
