Understanding covenants and easements

Understanding covenants and easements
Understanding covenants and easements

It’s always advisable to carefully check the title of a property you are thinking of buying to avoid any last minute surprises that may interfere with the sale.

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 restrictions on the 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 Such a caveat effectively prevents the registration of any transfer of ownership until the caveat is formally withdrawn.

Restrictions on the land are called ‘covenants’ or ‘easements’ and can be placed to ensure that it is not used in certain ways or that buildings conform to certain requirements.

This is often done on land within a sub-division to try and ensure that the buildings are of a uniformly high standard.

Other covenants may prevent views from being blocked or natural light being impeded.

Generally, to remove a covenant an application must be made to the person who imposed it and this may be complicated. Anyone seeking to remove a covenant should therefore seek expert legal advice.

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.

Covenants and easements are reasonably common and in most cases will not affect the value or saleability of the property. However, before buying you should ask the selling agent if they exist, request copies and read and understand them before making a commitment to buy. You may also wish to seek further legal advice.

Generally, a bit of common sense should address your concerns and after taking the information into consideration you will be in a better position to make an informed decision on a purchase.

David Airey is president of the Real Estate Institute of Western Australia.

This article was originally published on reiwa.com

David Airey

David Airey

David Airey is president of the Real Estate Institute of Western Australia.

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Covenants Easements

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