Covenants and easements can have a major impact on what you can do with your property. They can prevent various forms of construction and/or restrict the use of your land. It is essential that any encumbrance on title is investigated prior to acquiring a property. If you wish to remove or vary an encumbrance, our firm has specialist expertise and knowledge in this area.

Covenants and easements generally run with the land. They are usually registered on title and are binding upon successors in title and purchasers of the land.

Easements are rights over someone else’s land, such as:

  • A right of way.  This type of easement allows passage through another person’s land; and
  • An easement for essential services such as water, electricity or sewerage will often enable a public authority to enter upon and use the servient land to maintain a public asset

 

The land that gains the benefit of the easement is known as the dominant land, while the land subject to or burdened by the easement is called the servient land.

The owner of the servient land must not prevent access to their land by the entity benefiting from the easement, and may not materially interfere with the easement without the benefiting party’s consent.

A restrictive covenant is an agreement between land owners that limits the way land can be used and developed.

Common examples of restrictive covenants include:

  • A restriction on how many dwellings may be built on the land;
  • A stipulation of building materials by which the dwelling on the land must be constructed; and
  • A limitation on the height of a structure erected on the land.

 

The land where the restrictions apply is called the burdened land, and the land that benefits from the restrictions is called the benefited land.  Restrictive covenants are designed to enhance and protect the dominant land.

Tisher Liner FC Law has been involved in numerous decisions where convenants have been removed and varied to allow significant developments to proceed.

 

We have experience in making applications to Land Use Victoria under Section 73 of the Transfer of Land Act for applications for removal of easements and Section 43 of the Transfer of Land Act surrender of easement applications.

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