Can I Remove a Restrictive Covenant From My Property in WA?

Buying a property does not always mean having complete freedom over how you use or develop it. A restrictive covenant can place legal limits on what can be built, changed or done on a particular parcel of land. These restrictions are generally recorded on the title and can continue to affect the property when ownership changes.

If a restrictive covenants property issue is affecting your plans to build, subdivide, renovate or develop land, you may be wondering whether the restriction can be removed or changed. In Western Australia, the answer can be yes, but the process depends on the type of covenant, how it was created, who benefits from it and the circumstances surrounding the property.

What Is a Restrictive Covenant?

A restrictive covenant is a legal restriction that controls how land can be used or developed. Examples can include restrictions relating to building design, building height, the number of dwellings, materials, appearance or other aspects of development.

Under WA land law, restrictive covenants can be created in different ways, including by deed, transfer or certain subdivision plans. They can be registered against a Certificate of Title, meaning future owners may also be bound by the restriction.

This is why checking the title before purchasing or developing property is important. Landgate states that a Certificate of Title can contain information about restrictions and covenants affecting a property.

Can a Restrictive Covenant Be Removed in WA?

In some circumstances, a restrictive covenant can be removed, modified or extinguished. However, there is no single process that applies to every covenant.

Landgate identifies several possible pathways, including removal by agreement between relevant parties, a court order, or implementation of a town planning scheme where the applicable requirements are met.

For certain restrictive covenants, the consent of people with an interest in the benefited or burdened land may be required. This can make the process more complicated where multiple properties are affected.

If the covenant has a specific term and that term has expired, Landgate states that the covenant no longer has effect and may be eligible for removal from the title through the relevant process.

What If the Covenant Is Preventing Development?

A restrictive covenant can become a significant concern when you want to undertake development that conflicts with the restriction.

For example, a covenant may affect:

• Building or extending a home
• Building height
• The number of dwellings on a lot
• Subdivision plans
• Building materials or design
• Certain uses of the property
• Development of an estate or residential lot

The WA Government has specifically recognised that restrictive covenants can sometimes limit residential development or future subdivision in ways that may conflict with planning provisions. There are circumstances where local planning schemes provide a mechanism to vary or extinguish certain covenants.

However, planning considerations and property-law rights are not necessarily the same thing. The wording of the covenant and the title documents should be examined before assuming that a proposed development can proceed.

Can I Ask the Benefiting Landowner to Remove It?

Potentially. One possible route is to reach an agreement with the relevant parties who have an interest in the covenant.

Landgate's guidance explains that, under the relevant statutory process, an application may be made with written consent from persons having an interest in the benefited or burdened land.

In practice, identifying the correct parties and obtaining the required consent can be one of the most important parts of the process. If negotiations fail, another legal pathway may need to be considered depending on the covenant.

What If the Other Party Refuses?

A refusal does not necessarily mean that you have no options. Depending on the circumstances and the type of covenant, a court application or another statutory process may be available.

The appropriate pathway should be assessed after reviewing the actual covenant, Certificate of Title, relevant plans and the reason you want the restriction removed or changed.

This is where restrictive covenants lawyers can be valuable. A lawyer experienced in property law can examine the restriction, identify the parties involved and explain whether negotiation, a statutory application or court proceedings may be appropriate.

Why Get Advice From Property Lawyers Perth?

Restrictive covenant disputes can involve property titles, development plans, planning requirements and contractual or statutory rights. A seemingly simple restriction can therefore become complicated if action is taken without understanding the legal position.

Experienced property lawyers Perth can help you:

• Review the restrictive covenant and title documents.
• Explain how the restriction affects your property.
• Identify possible options for modification or removal.
• Communicate with relevant parties.
• Assist with negotiations and documentation.
• Advise on appropriate legal or statutory procedures.
• Help address disputes involving neighbouring landowners.

If you are planning to develop land affected by a covenant, obtaining advice before spending substantial amounts on plans or construction can help you understand potential restrictions early.

What Should I Do Before Trying to Remove a Covenant?

Start by obtaining and reviewing the current Certificate of Title and the document creating the covenant. Landgate notes that title information can identify restrictions and covenants connected with a property.

You should then determine:

1. What exactly does the covenant restrict?
2. Which land receives the benefit of the covenant?
3. Who owns the benefited land?
4. Has the covenant expired?
5. Does your proposed development conflict with it?
6. Is consent required from other parties?
7. Is there a planning scheme pathway available?
8. Would negotiation or legal proceedings be appropriate?

Avoid assuming that a covenant is unenforceable simply because it appears old or inconvenient. The legal effect depends on the particular wording and circumstances.

Frequently Asked Questions

Can every restrictive covenant be removed?

No. The ability to remove or modify a covenant depends on its terms, how it was created, the interests involved and the applicable legal process. Landgate identifies agreement, court orders and certain planning scheme processes as possible pathways.

How do I know if my property has a restrictive covenant?

You can review the property's Certificate of Title and related title documents. Landgate confirms that title information can identify restrictions and covenants connected with a property.

Can a restrictive covenant stop me from subdividing?

It can potentially affect subdivision or development, depending on the wording and legal effect of the covenant. The WA Government notes that some restrictive covenants can limit the potential for future subdivision.

Can an expired restrictive covenant be removed?

Potentially. If a covenant was subject to a specific term and that term has expired, Landgate states that the covenant no longer has effect and provides a process for removing eligible expired covenants from the title.

Should I speak to a property dispute lawyer in Perth?

If a restrictive covenant is preventing your planned development, creating a disagreement with another landowner or affecting a property transaction, obtaining legal advice can help you understand your options before taking further action.

Get Advice About Restrictive Covenants in WA

A restrictive covenant can have a significant impact on how you use, develop or sell your property. However, being subject to a covenant does not automatically mean that you can never change or remove it.

If you are dealing with restrictive covenants property issues, speaking with property lawyers Perth WA can help you understand the restriction and the options available in your particular circumstances. For disputes involving neighbouring owners or enforcement concerns, a property dispute lawyer Perth can also advise on appropriate dispute-resolution or legal pathways.

The earlier you understand the legal position, the easier it can be to make informed decisions about your property.