Unfortunatley, my husband and I find oursevles in a position where we DID NOT stay away (!!) from buying a property with a single-storey covenent on it. As such, we are the proud – read: frightened – owners of a property (in Victoria) which has a single-storey covenent.
We are hoping that someone can provide us with a starting point (maybe the name of a good lawyer who specialises in this!?) to get this lifted. We have owned it for 18 months and it is currently being rented out. We want to build two-storeys in the not-too-distant future (or whenever/ if ever we can sort this single-storey covenent out) and we don't even know where or HOW to start investigating it.
I read a post on this forum dating back to 2005 that said because it is in Victoria, we don't need a Town Planning permit, just a building permit, so therefore we could just build "illegally", provided the plans met building regulations. Are the laws still the same? Surely that has insummountable risks? We would not want to find oursevles in a position where we were ordered by the Supreme Court to pull our house down if a neighbour took us to court! I'm assuming that is a possibility!? Ideally, we would like to "clean" the title – even for the sake of selling it in the future.
Interestingly, none of the surrounding properties (and very few in the street) are single storey. Ours is the odd man out. Does that make our position a little more hopeful? I don't even know why or how there was a covenent placed upon it in the first place. How could I find this information out??
Any insight/starting point you can offer would be greatly appreciated.
Thank you in advance.
*covenAnt!
Hi MonDan,
Historically you could build and even get planning permits without anyone checking whether there were covenants on the land, but that changed a few years ago. I even know of a case where they got a planning permit before the legislation change, but didn't build in time and now they can't build unless the covenant is removed/varied.
Basically there are two avenues: local council planning application or supreme court, obviously a lawyer is needed for the court option but isn't necessary if you go through the council. The basic process through council is that they will advertise to the beneficiaries and maybe to your neighbours. If there are any objections then most likely to covenant removal won't be supported.
I would start by looking at your plan of subdivision. The other lots on your plan are likely to be the beneficiaries of the covenant (or at least some of them depending on when they settled). Also, many of the covenants that I have seen give you details such as who and when it was put on, so that might give you some information about your last question.
Are there views at stake, as that has been the only time I've seen single storey covenants before? If there aren't many lots and it isn't about views it might be worth talking to them first, before lodging an application.
Best of luck,
Hi Melanie,
Thank you so much for your response. There are views at stake in that it is a hilly area with the house being on the highest part of the hill. All the neighboring properties are double-storey though. The neighbors are all very set in their ways and very happy that our house has a single-storey covenant. It is local street “gossip” and I am sure they are convinced that keeping our house single-storey will improve the appeal and value of theirs. I have heard (via gossip) that the owners prior to the ones whom we bought off tried to get it overturned and it was too difficult and therefore they sold. I have no real way of validating this story – or finding out the means they took to attempt to clean the title.
would i approach local council direcly, or via a town planner? I notice you serve the bayside area… can you recommend someone good who has experience with Stonnington?
Thank you once again.Hi MonDan,
In my experience dealing with council directly can be a nightmare for everyone involved. I would suggest it would be worth your while speaking with a private planner to see how they’d go about it. Melanie always hands out good advice on the forum, as does Breece at Hub Plan. Most of the professionals here work Melbourne-wide and have experience with almost every council, so I wouldn’t be too worried about finding someone from that exact area.
Cheers,
Hi MonDan,
No problems. Ashley is quite right that any planner can assist as we work Melbourne-wide (and thanks for your comment Ashley). It sounds like it has a bit of a history! The "test" to getting a covenant removed can be a bit of a hurdle as if a beneficiary states that they will be negatively affected and it is not seen as vexatious then council will often refuse the application. Of course this is very general advice and I would start by seeing how many beneficiaries and the location of them. If you have a copy of your title and plan of subdivision you should be able to get some more specific advice.
As an aside you can also check the history of your property with regards to previous planning permit applications by contacting the council or going online and searching the planning register on Stonnington's website (http://www.stonnington.vic.gov.au/residents-and-services/planning/planning-register-online-disclaimer/).
Regards,
Thanks Ashley for that reassurance. To be honest, I am so "nervous" about this problem that I don't think I've got the state of mind to handle it for myself and my husband is too busy trying to earn enough money to pay the mortgage on it
Hi Melanie,
I will email you privately (with specific details regarding my case) to see if you can /are interested in being contracted to help me out! Just a couple of quick general questions – I did do a search on the link you gave me and nothing came up – does the system not always work because I am sure past efforts/applications were made. Also, if we are trying to get this overturned and let's say, best case scenario, it gets approved – is it important to do it as close to the time you plan to build as possible (ie: are these decisions bound to a time period or do they remain forever)? We are currently living overseas and will be returning at the end of the year – is it something i can get underway whilst not being physically in the country!?
Also, in the case of my worst fears, and this issue cannot be resolved via a straight-forward route, would you suggest it is worth putting any money into remedying it? (ie: can it end up a bottomless pit in legal costs.. and/or how likely is it to work out in my favour)? I vaguely remember the lawyer we got to read the sect 32 (who did say he was not very well-versed in property law) before purchasing, said that in my particular case he can't really see any modern reason why our covenant would still be of any value to the beneficiary (ies). He said that it was very old and outdated But he also told me to stay away from the property
(((Thanks you
RegardsMonique
Hi Monique,
You have an interesting problem,
Could I ask," Is you house the highest block on the hill and what reasons did your lawyer advise you to stay away from the property ?
Hi Monique,
- With regards to your search it may be that the online register is not complete (i.e. it doesn't go back to the start of records), or the record may not have been inputted (or they could be lost). You can ring the council and speak to the town planning department to see if there are any other records. This can be done on your behalf by a representative (since you mentioned you were overseas).
- If you get a permit approved by the Council the next step will be to apply to the titles office to have the covenant removed. Planning permits have a time limit, which is usually 2 years to start something. Once you act on the permit and get the covenant removed then that will be it, it's permanent. As for timing, it is worth noting that this process can take time.
- No you don't have to be in the country to lodge an application.
- Well, removing a covenant via a planning application has a set process with fees that can be defined at the start. Generally when people spend a lot on this process it is due to multiple attempts or by going to the Supreme Court.
Regards,
(((
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