My neighbour recently sold their property. Their property is subject to a restrictive covenant saying that they can't build a dam right on our boundary fence line as it could overflow and cause damage to our property which is lower lying than theirs. Can I enforce the covenant against the new owners?
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Answer by Neha Sharma, Hillsdale 2036 NSW
- The principles of equity will allow you to enforce a restrictive covenant against your new neighbours provided that when they took title to the property they were given notice that the covenant existed. However the laws regulating conveyancing also require that any restrictive covenants must be listed on the register.
- To be enforceable the covenant must:
- be negative in nature;
- be for the protection of the land retained by the covenantee; and
- have been intended to run with the covenanter’s land.
- If the covenant was created to benefit you personally rather than your land then it may not be enforceable against the new owners. In the circumstances you have mentioned the covenant exists for the protection of your land rather than you personally so it should be enforceable.
- You should speak with your neighbour first before pursuing any legal action. They may be more than happy to cooperate with you and abide by the covenant. If there is any indication that your new neighbours are unwilling to cooperate you might need to contact a lawyer who can evaluate the specifics of your situation and advise whether the covenant is still enforceable and if so how to ensure it is complied with.