Covenants
A covenant (not to be confused with a caveat) can be registered on a property title. The aim of a covenant is to prevent certain uses of the land which are set out in the covenant.
The best example of a covenant, which you need only drive down the street to see, is a new housing estate. The "cookie cutter" look is no accident, but is usually the result of a restrictive covenant registered on each and every title when the land is first subdivided. Common prohibitions include the use of second hand building materials, relocation of pre-fabricated house, visible water tanks / TV antennas / solar panels / rubbish bins, and sometimes even parking your car in your own driveway. For an example of one of the more restrictive covenants in place in Victoria, click here to read an example of one in place on the Surf Coast.
Although a covenant can have a similar effect to a planning restriction imposed by council (for example, where it relates to the type and number of animals you can keep at a property), it is important to remember that council do not create covenants and will not enforce them. A covenant is basically an agreement between landowners - it restricts the landowner(s) said to be "burdened" (i.e. restricted) by the covenant, with the aim of benefiting the other landowners. In reality, in the case of new estates, typically this means that Lot 1 is burdened for the benefit of Lots 2, 3 and 4; Lot 2 is burdened for the benefit of Lots 1, 3 and 4, etc. As it is a private agreement, enforcement must be done privately, and the usual channel for this is the Victorian Civil and Administrative Tribunal. This is also the way to have a covenant removed, if considered necessary, or otherwise via the Supreme Court. This is not a cheap or quick exercise.
Some covenants expire after a set time or on a particular date, but most remain in force indefinitely. There is also the possibility that only part of a covenant may lapse, for example the prohibition on placing a prefabricated house on the land may end after 15 years, but keeping chickens on the land may never be permitted.
If you are considering purchasing property subject to a covenant, a copy of the covenant should be provided in the Section 32 Vendor Statement, and you should carefully peruse this and seek legal advice to ensure you understand the nature and effect of the document before making an offer on the property. You do not want to find yourself the proud owner of a new caravan that you can't park in your driveway, or some chickens that you can't keep in your yard, due to a covenant registered on your title.
For more information or assistance interpreting a covenant, whether for a new property you are considering purchasing or property you already own, please click here to contact me to discuss.
Can I keep chickens at a suburban property?
While a phone call to your local council might answer this question for you, the answer they give you isn't always correct. For example, City of Ballarat allows up to five chickens to be kept on an urban residential property. However, estates developed in the last 20 years or so tend to include covenants preventing the keeping of any poultry. You'll remember from above that council don't enforce covenants, although they may intervene if the chickens constitute a nuisance, in the same way you might complain about a barking dog. If there is no nuisance and it is the mere presence of the chickens that is an issue, council likely won't be interested in intervening and the only recourse will be an application to VCAT.
If you're wondering what other animals you can and can't keep in Ballarat, their local laws can be found online. You'll need to scroll down to page 27 for the list of animals, and remember that this is the council rule and may not apply if you are also in an area affected by a covenant.