By Ron Cohen

20 April 2017

Anyone seeking to purchase land should have a property solicitor vet the Contract and Vendor Statement before signing.

A legal review of the Contract documents will, amongst other things, identify any restrictions affecting the land, including whether there are any easements or restrictive covenants relating to the property.

Easements

Easements are rights that an individual has over someone else’s land.

An easement is a legal right to use another person’s land for a specific limited purpose even though they are not the owner of that land. The owner of the land grants another person a right to use their property for a specified use but the full legal title of the land remains with the owner.

Easements generally contain the following characteristics:

Dominant land (that is the land benefited by the easement) and servient land (being the land burdened by the easement);

The easement must be for the benefit of the dominant land;

The dominant and servient land must not be owned and occupied by the same person; and

Easements must be for a specific purpose and cannot be too wide or vague.

Common easements include:

A right of way (this type of easement allows a person to pass through another person’s land), e.g. to permit a neighbour to use a private roadway or pathway over another person’s land; and

An easement for services such as water, electricity or sewerage (often in favour of a public authority who have the right to enter the servient land). For example a right for a water authority to run a sewer or drain across a strip of someone’s private property.

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

Restrictive Covenant

A restrictive covenant is a private agreement between two land owners to limit the way that land can be used or developed, often imposing obligations on land owners not to do something on their land or to restrict the way that the person’s land may be used and developed.

Restrictive covenants are often intended to enhance the dominant land’s property value by controlling development on the restricted or burdened land.

Common typical examples of restrictive covenants include:

A stipulation on how many dwellings may be built on the land, e.g. a single dwelling covenant means that only a single residential dwelling can be built on the land;
A covenant stipulating materials by which the dwelling on the land must be constructed;
Prohibiting the building of a structure, such as a house, above a certain height; and
Restrictive covenant prohibiting the use of the land for quarrying operations.

Conclusion

Easements and restrictive covenants generally run with the land. They are usually registered on title and are binding upon successors in title and purchasers of the servient and dominant lands.

It is important to ascertain if a property you are intending to acquire is affected by any easements or restrictive covenants. They may, for example, restrict the purchaser’s future use of the property (e.g. if the purchaser intends to develop the land) etc.

A property lawyer can identify and advise on these and how they impact upon the land and what rights a land owner may have to enforce or remove them.

 

For more information or advice on restrictive covenants or easements, please contact Ron Cohen or a member of our Property Law Team.

Related Articles

View All
Property & Development

Option Deeds: What are they and Potential Risks

Contracts of Sale are utilised by the parties to record their agreement to sell and/or buy a property Depending on the...
Read More
Property & Development / Real Estate Agents

Nominating a new purchaser – 3 big things to think about

Some of the questions which you will need to answer when, or even before, you nominate a new purchaser are: How is GST...
Read More
Property & Development / Mortgages, Loans & Finance / Real Estate Agents

What is the Homebuyer Fund?

The Fund allow individuals the opportunity to own their own home that previously has always been out of reach The Fund...
Read More
Litigation & Dispute Resolution / Property & Development

Interstate Landlords in Victoria – new arrangements in the Magistrates’ Court of Victoria

One of the hassles for residential landlords who own property in Victoria but live interstate has been the lack of...
Read More
Property & Development / Real Estate Agents

Recording: TLFC Law Lunchtime Briefing: 2021 Commercial Tenancy Relief Scheme

If you were unable to attend this session, you are welcome to watch the recording at your convenience...
Read More
Property & Development / Commercial Contracts & Agreements / Small to Medium Enterprises

COVID-19 Clauses in Contracts of Sale

The uncertainty and instability of the COVID-19 pandemic continues, as Melbourne endures lockdown 60 and other parts of...
Read More
Property & Development

It’s Groundhog Day: COVID-19 and the new CTRS legislation

It’s a bit like Groundhog Day down here in Victoria: another day, another lockdown Another year, another Commercial...
Read More
Leasing & Lease Disputes / Property & Development / Real Estate Agents

COVID-19 and the new Commercial Tenancy Relief Scheme

A global pandemic, an economy forced into hibernation, and repeated, extended, and somewhat unpredictable lockdowns…...
Read More
Property & Development

TLFC Law Property Team: Finalist in the Lawyers Weekly Australian Law Awards 2021

Tisher Liner FC Law is proud to announce that once again our Property Law Team has been shortlisted as a finalist in...
Read More
Property & Development / Real Estate Agents

TLFC Law Lunchtime Briefing: Post Commercial Tenancy Relief Scheme (CTRS) – what’s next?

If you were unable to attend this session, you are welcome to watch the recording at your convenience Passcode:...
Read More
Property & Development

Further announcements concerning the Victorian budget for 2021-2022. What are they?

The State Government has now released further announcements concerning the Victorian budget for 2021-2022 in...
Read More
Property & Development

2021/2022 Victorian budget, overview on how the changes to taxes will affect the property market

Land Tax Increases to land tax will be raised for properties worth more than $18 million from 1 January 2022 Land tax...
Read More