When purchasing land or property in New South Wales, it’s important to understand whether a covenant applies to the title. A covenant is a legally binding agreement that places restrictions or obligations on the land, and it can significantly affect what you can or cannot do with your property.

Definition of a Covenant

A covenant is a written agreement registered on the title of a property that requires a landowner to either:

• Do something (a positive covenant)
• Refrain from doing something (a restrictive covenant)

Covenants are attached to the land, not the owner, meaning they are binding on future owners as well.

Common Types of Covenants in NSW

1. Restrictive (Negative) Covenants

These prevent certain uses or developments, such as:

• Not building above a certain height
• Not using the property for commercial purposes
• Limiting the type or style of construction (e.g. no lightweight cladding)

2. Positive Covenants

These require the landowner to perform a task or maintain infrastructure, such as:

• Maintaining stormwater detention systems
• Providing access for maintenance of utilities

3. 88B Instruments

Covenants often appear in section 88B instruments under the Conveyancing Act 1919, which are registered with deposited plans and identify rights, restrictions, and obligations on the land.

Why Covenants Matter to Buyers

Before purchasing a property, it’s critical to review any registered covenants because they:

• Limit development potential (e.g., restrict duplex construction)
• Affect resale value or future use
• Impose maintenance or financial obligations

You can find details of any covenant by:

• Reviewing the title search
• Reading the Section 10.7 Planning Certificate
• Checking any Section 88B instrument attached to the contract

Legal Status and Enforcement

Covenants are enforceable by:

• Other landowners who benefit from the covenant (called the "dominant tenement")
• Councils or government agencies, in some cases (especially for environmental or infrastructure obligations)

Violating a covenant can result in:

• Injunctions to stop works
• Fines or court orders
• Council refusing a development application (DA)

Can a Covenant Be Removed or Modified?

Yes—but only through a formal process. Options include:

• Applying to the NSW Land Registry Services to have it modified or removed (with consent of the benefiting party)
• Seeking approval through the Land and Environment Court under Section 89 of the Conveyancing Act 1919
• Modifying via a new Section 88B Instrument, in some subdivision or consolidation cases

Note: Removal is often difficult and can be costly, especially if multiple parties benefit from the covenant.

Example Scenario

A property buyer in Western Sydney wants to knock down and rebuild a dual-occupancy (duplex) dwelling. However, a restrictive covenant on the title prohibits more than one dwelling on the lot. Even though zoning allows dual-occupancy, the covenant overrides the development potential—unless formally removed or modified.

Frequently Asked Questions (FAQs)

Are covenants the same as easements?
No. Easements are rights of use (e.g., access or drainage), while covenants are restrictions or obligations on how land is used.

Where can I find covenant information for a property?
Check the title search, 88B instrument, and planning certificate (Section 10.7). These are typically included in the Contract for Sale.

Can I ignore a covenant if it seems outdated?
No. Covenants remain binding until formally removed or extinguished—even if they seem obsolete.

Do covenants override council zoning?
Not exactly. Both must be satisfied. You must comply with planning laws and any private covenants—so a compliant DA can still be blocked if it breaches a registered covenant.

Conclusion

Covenants are a critical part of due diligence when buying or developing property in NSW. They can impact land use, building design, and future development potential. Always consult a solicitor or property professional before purchasing a lot with registered covenants.

To easily check for covenants and other planning restrictions, use tools like SiteReview.ai for a simplified property compliance summary.

Disclaimers

Legal Disclaimer: This content is intended to provide a general overview of the relevant legislation and should not be relied upon as legal advice. Property and planning laws are subject to change and may vary depending on specific site conditions and council policies. For advice tailored to your circumstances, please consult a qualified legal or planning professional.

General Disclaimer: This article is provided for general informational purposes only and does not constitute legal, planning, or environmental advice. While every effort has been made to ensure accuracy, the information may not reflect the most recent changes in law or policy. You should seek advice from a qualified professional or relevant authority before making any property-related decisions.