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Understanding covenants and easements

Author: Make sure you check the title of a property you are thinking of buying to avoid any last minute surprises from covenants and easements.

Covenants and easements are reasonably common and in most cases will not affect the value or saleability of the property – however some will.

What is a covenant?
A covenant is a contractual agreement that creates an obligation to the owner of the land that the covenant affects.

This obligation is then transferred over to the new owner when the property is sold. Covenants can include things like materials used for the building, the minimum floor size of the house or restrictions to stop views being blocked or natural light being impeded.

What is an easement?
An easement is the legal term for a right, which someone other than the owner, has over the use of the land for a specific purpose. For example, the neighbours may have a right-of-way to enable access to their property or the Water Corporation may have the power to obtain an easement to use part of the land for sewerage or water pipes.

How do covenants and easements impact the Certificate of Title?
In Western Australia, Landgate is the state government department which has responsibility for keeping the records of who owns each piece of land. The document on which ownership is recorded is called the Certificate of Title

The Certificate of Title will record the present owner, note if the property is currently mortgaged and what rights other people and the wider community may have on the property and which might affect the buyers use and enjoyment of the land.

Before entering into a contract for the sale of land or strata title it’s wise to have a good look at the Certificate of Title. The selling agent is required to conduct a search and should therefore be able to show you a copy.

Sometimes there are covenants and easements on the Certificate of Title that may affect its transfer when property is being sold. This might occur when another person or organisation has a financial claim or interest over the property in addition to the mortgage. Such a caveat effectively prevents the registration of any transfer of ownership until the caveat is formally withdrawn.

Generally, to remove a covenant or easement an application must be made to the person who imposed it and this can be complicated.

If you are looking to remove a covenant or easement you should seek expert legal advice.

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