How do you enforce land covenants when a neighbour is in breach? Good question. A land covenant is a document that creates a legal obligation to do – or not to do – something in respect to a property. It is registered on a record of title of a property.
Land covenants can cover a variety of matters, such as what materials you can use in your house build, the type of fencing you can use, the colour of your roof, where you can put your washing line or what animals you are allowed to keep. These obligations are commonly found in new suburban subdivisions and are designed to maintain the quality of the neighbourhood.
If your neighbour has breached the covenants, steps can be taken to enforce and rectify the breach.
The process to enforce a breach will be spelt out in the land covenant itself but common practice is to give written notice to your neighbour specifying the breach, the work to be undertaken, whether you believe contractors or workmen need to enter the land to remedy the breach, and the consequences that will follow should they not adhere to the notice.
Under the Property Law Act 2007, your neighbour has 15 working days to respond to your notice. If they do not respond within the timeframe, they are deemed to have accepted the notice – in this case, you can then take action to rectify the breach and pass all reasonable costs on to your neighbour.
You must not take action to remedy the breach before the 15 working day timeframe has expired or if your neighbour responds advising they believe there has been no breach and the matter is disputed.
Should you be unable to resolve the dispute yourselves, an application can be made to the Court for resolution. The Court can make an order on:
- the existence/enforceability of the covenant;
- whether any work is required and, if so, the nature and extent of any required work;
- the reasonable and proper cost of any required work;
- who shall pay the cost of any required work;
- the time any required work is to be undertaken;
- the entry onto any land for the purpose of doing any required work; and
- any other matters arising.
The Court Order is binding on all parties.
If you are looking to purchase a property with land covenants registered against the record of title it is important you discuss these with your solicitor so you understand the implications of these land covenants before purchasing.
Please contact us if you need help with this.