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Caveats, Easements and Convenants. The details explained for property buyers and property sellers.

Caveat

The word caveat means ‘beware’ and lodging a caveat on a property warns anyone dealing with the property that someone has a priority interest in that property as the caveat is a notice on title. The caveat also restricts others from registering an interest in the property without the Caveator’s knowledge as a Caveator is informed of any proposed dealing at the land registry and has 30 days to object to the proposed dealings from the date the notice was served.

Any person with a legal or equitable interest can lodge a caveat.

It is highly recommended that any purchaser lodges a purchaser’s caveat as soon as possible after execution of the Contract of Sale. The risk in not lodging a purchaser’s caveat is that another party may lodge a dealing over the property that prevents the property being transferred into the purchaser’s names.

Easement

An easement is a right held by a ‘benefited party’ to use someone else’s land for a specific purpose. Common examples of easements are utilities, drainage, sewerage, carriageway and party wall easements.

In the picture below, you can see the highlighted easement is for drainage.

Easement Example

Untitled design

The owner of the property cannot construct anything along the easement to obstruct the easement unless consent is provided by the benefited party (for example, the water authority).

Easements may be registered on title or unregistered.

Easements may also be removed or modified pursuant to the Subdivision Act 1988 and the Planning and Environment Act 1987, although a planning permit will generally be required, the purpose of which is “to enable the removal and variation of an easement or restrictions to enable a use or development that complies with the planning scheme after the interests of affected people are considered” [clause 52.02 VPP].

Covenants

A covenant is a written agreement between the landowners restricting the use or development of the land. The land which has a covenant recorded on it is called the ‘servient or burdened land’ and the land that benefits from the covenant is a ‘dominant or benefitted land’.

Common Examples of a restrictive Covenant are as follows:

  • restricting the materials used for new dwelling and fences;
  • a “single dwelling covenant”, restricting land owners to build more no than one dwelling on the land;
  • restricting the set backs from boundaries of the land.

Covenants are usually created by developers when land is subdivided to benefit and protect other lot owners within the estate. Sometimes, covenants are registered and noted on the land by way of a Memorandum of Common Provision. Therefore, it is important that purchasers have their contracts reviewed by a legal representative to assist in identifying them.

Registered covenants follow the title and may have an expiry date noted. Otherwise, they may be varied or removed by one of the following ways:

  • apply to the Supreme Court of Victoria (section 84 Property Law Act 1958);
  • request the responsible authority amend the planning scheme;
  • apply to the responsible authority for a Planning Permit (section 60 Planning and Environment Act 1987; or
  • seek agreement for release of the covenant with the dominant owner of the land to extinguish the covenant.

Our team of experienced Property lawyers can provide expert advice and support with any questions or concerns you may have regarding Caveats, Easements and Covenants. Please contact our property team via phone on +61 3 9822 8588 or via email here .

Insight written by Wendy Toura and Kristy Muhlhan

Contacts

Kristy Muhlhan

Principal

Kristy Muhlhan

Principal
LL.B (Hons) GRAD DIP. L.P., GAICD.
Since 2014, she has been an owner and Principal of the firm and has mastered a broad range of essential commercial and business skills which go hand in hand with the work she does for...

Sandra Le

Associate

Sandra Le

Associate
LL.B BCom
Sandra is professional and takes exceptional care with every matter she undertakes and is a natural problem solver.

Wendy Toura

Conveyancing Team Leader and Law Clerk

Wendy Toura

Conveyancing Team Leader and Law Clerk
Licensed Conveyancer, BCom
Wendy’s role is primarily in conveyancing.

Emma Dickens

Paralegal

Emma Dickens

Paralegal
Bachelor of Legal and Dispute studies
Emma joined us in 2018 and holds a Bachelor of Legal and Dispute studies. Emma is currently studying for her Advanced Diploma of Conveyancing.

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