I've just purchased a recently subdivided block of land. The original owners subdivided their block of land and then sold the new parcel to me. The original owner agreed to sell the new parcel to me on the proviso that I agree not to build a house that is over two storeys high because it will obstruct his view and create too much shade over his backyard, which will affect its value. It's now six months later and he has sold his house. I have new neighbours. Do I still have to comply with the covenant?
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Answer by Neha Sharma, Hillsdale 2036 NSW
- This will depend on the particular covenant and its wording and intention.
- Under general legal principles the person entitled to benefit from a covenant (your neighbour) may choose to release it by deed or in writing. A covenant released in this manner is upheld under equitable principles of property law.
- Under the Torrens system a person entitled to a benefit from a covenant may release it by registering a deed of release with Land and Property Information (LPI).
- Covenants are generally removed or ‘released’ if they no longer hold any practical utility that benefits the land.
- A covenant is considered to have been impliedly released if:
- there has been long inconsistent course of use;
- the person benefiting from the covenant has repeatedly disregarded breaches; or
- the character of the neighbourhood has changed so much that the covenant has become redundant or obsolete.
- You may ask your new neighbours for a release from the covenant.
- Alternatively your neighbours may wish to continue to enforce the covenant. Whether they can do so will in part depend on whether the covenant has been registered or not.
- It will also depend on whether the covenant was created to personally benefit the original owner or whether it was intended to remain on the land regardless of who owned it.