Hi there. In New South Wales, a restrictive covenant is binding on the owner of the land. This means that an owner must comply with the restriction, otherwise they risk being sued by the person who benefits (or originally benefited) from the covenant.
Sometimes a covenant may seem unreasonably restrictive, particularly if it is very old or no longer relevant. From the information you have provided, it is likely that the restrictive covenant over your property is a ‘building materials covenant’ (i.e. a covenant that restricts the type, style or proportion of building materials that may be used in the construction or repair of buildings).
There are several ways to remove a restrictive covenant such as the one affecting your property. If you are the property owner, you can apply to the Registrar General for removal of the covenant if it has been in effect for at least 12 years and the covenant is of a type likely to lose any practical value after 12 years of operation. Whether this option is available to you will depend on the precise nature of the restrictive covenant and its relevance to maintaining the aesthetic qualities of the housing estate. If this option is available, interested parties will be given a one-month to object to your application to remove the covenant.
Another option is to lodge a request for the Registrar General to exercise his or her discretion to extinguish the restrictive covenant on the grounds that, among other things, any time limit contained in the covenant has expired or the covenant has no practical value or application.
Another, more complex, option is to make an application to the Supreme Court to extinguish the covenant on particular grounds, including that keeping the restriction would interfere with your reasonable use of the land without giving any practical benefit to the person entitled to benefit from the covenant.
Note that some local councils can ‘override’ restrictive covenants by issuing particular types of local environmental plans. You should ask your local council whether this applies to your property.
Suggested way forward
From the information you have provided, it sounds like you may have a case for removing the restrictive covenant over your property. There are several ways of doing this, and some of them are more complex than others. You should consider speaking to a property lawyer who can advise you on the best course of action. By pressing the “Take Action” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.
Answered
over 8 years ago
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