Easements & covenants in Victoria.

An easement is a right for someone else to use part of your land for a defined purpose, most commonly drainage and sewerage in favour of the water authority, but also carriageway easements giving a neighbour vehicle access, and easements for power, light or air. You still own the land; you simply cannot obstruct the right.

A restrictive covenant is a promise recorded on title that limits what can be done with the land: single dwelling only, no subdivision, minimum build cost, no commercial use, materials or roof pitch requirements, or building envelope restrictions. Covenants are usually created on subdivision and can bind land indefinitely, benefiting every other lot in the original plan.

Both are disclosed in the section 32 and shown on the title and plan, but the practical consequence is rarely spelled out. The instrument itself is what governs, and working out who benefits from it tells you what you can build, what needs consent and what would need a formal application to change.

A restrictive covenant or easement is not always permanent. It may be varied or removed by agreement of those who benefit from it, by an application to the court, or through a planning scheme amendment, but each route has hurdles and none is quick, so it is worth a realistic view before buying with a plan to change it.

A covenant can also be enforced. Someone who benefits from a covenant can seek to restrain a breach, so building in a way that breaches one is a real risk, not a technicality.

Building over an easement without the authority's build-over consent, or in breach of a covenant, can result in a demolition order, an injunction from a neighbour, or a refusal to register your plan. It is worth checking before you design, not after you have a permit.