How do you enforce land covenants when a neighbour is in breach?
Land covenants place rights and obligations on the land/property you own. It is an instrument that is registered on a record of title for a property that runs with the land, which creates a legal obligation to do, or not to do, something in respect of the land/property.
Such restrictions can relate to anything from the colour of your house or what you use the property for; to where you put your rubbish or park your vehicle. These restrictions are commonly found in new suburban subdivisions to maintain the quality of the neighbourhood.
If you, or your neighbour, breach one of the covenants, steps can be taken to enforce and rectify the breach.
In recent times it has become more common to put a time limit on covenants. For example, if you are required to only use certain materials for building your home, in 30 to 40 years those materials may be out of date and the covenant more burdensome than beneficial. In some cases, covenants are no longer enforceable as the current law no longer supports them.
Processes to enforce a breach will largely depend on what is written in each individual covenant instrument.
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 the notice not be adhered to.
Under section 310 of the Property Law Act 2007, your neighbour will have 15 working days to respond to your notice. If they do not respond in this timeframe, then it can be treated as them agreeing with what was written.
You can then take action to rectify the breach and pass all reasonable costs on to your neighbour. However, your neighbour is entitled to respond with a cross-notice if they believe there has been no breach or they are not liable.
You must not take action to remedy the breach before the 15 working day timeframe has expired, nor if a dispute arises between you. Should you choose to take action anyway, your neighbour will not be liable to contribute to the costs.
Should you be unable to resolve a dispute, 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/or
- any other matters arising.
Any order a court makes is binding on all parties.
If you are purchasing a property with land covenants it is important you understand the implications of this before completing the purchase. If you own land subject to covenants it is important you know what these are and your avenues for enforcing any breach. In any event, you should consult your lawyer to review any land covenants registered against your property’s record of title.