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Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 18868
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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Hi, We are hoping to purchase a property this weekend at

Resolved Question:

Hi,

We are hoping to purchase a property this weekend at auction. The property is 0.5 acre and currently has a restrictive covenant on the lot, (for only a single dwelling).
Apparently this covenant only applies to this particular lot.
At this late stage it is difficult to work out our success in applying to have this lifted, as we would like to subdivide the block into two.
What do you think?
Thanks
Louise
Submitted: 10 months ago.
Category: Australia Law
Expert:  Leon replied 10 months ago.

Sydney-Lawyer :

Good Afternoon

Sydney-Lawyer :

Thank you for your question. To Introduce myself I am a sydney based Solicitor and will do my best to provide you with relevant information to assist you.

Sydney-Lawyer :

What state is the property in? Have you appointed a Solicitor to act on your behalf? Have you spoken to Council about the restrictions on the land and their position on changing that?

Customer:

Hi,

Customer:

Hi, the property is in Victoria, Eltham. We haven't appointed a solicitor, as the Auction is this Saturday, and I didn't think that they would be able to get all the relevant info in such a short time.

Customer:

Hi

Customer:

sorry I didn't realize every that I hit the enter key, it was uploaded!

Customer:

bad habit! I have spoken to the planner at our local shire, who in principle doesn't have a problem with the subdivision, so long as it fits in with their landscape overlays, etc.

Customer:

and other building regulations. She was also unsure, if we could apply for the subdivision even though it has the covenant on the lot, for the single dwelling, and then the covenant would be placed on both of the new blocks?

Expert:  Leon replied 10 months ago.
Good Evening

Can you please provide me with a response to what I have asked?
Expert:  Leon replied 10 months ago.
Good Evening

Have you approached council and asked their position on changing the restriction? It is placed on property because it is a requirement of council and the zoning.


Expert:  Leon replied 10 months ago.
Good evening

Can you get that in writing from the council?
Expert:  Leon replied 10 months ago.
Good Evening

If you subdivide both blocks will have the covenant.

You have to ask the council what their position is on removing the covenant. If they are get it in writing so you have evidence.

This is the best way for you to get some guarantee before you bid.
Customer: replied 10 months ago.

the planner from the council, was unsure, and felt that it was a legal matter, that would take some time with a solicitor. and had little idea if we would have difficulty in having it removed. But did say, that if it was removed, that she didn't see any major issues with the subdivision

Expert:  Leon replied 10 months ago.
Good Evening

The Solicitor could not do anything to remove it before the auction and if they are not prepared to give you an answer they will not give one to a solicitor.

It is a matter where you can try and negotiate with the Vendors to make the contract subject to the covenant being removed. If it is not removed then you can cancel the contract.

Again this is a suggestion but if I was acting for the Vendors I would advise them against accepting it.

But you never know who they have acting for them.

Only if you can get something in writing from the Council that they will assist and remove it if you apply for its removal, can you be certain that they will, and if they dont you can sue them.

It is a difficult matter and if you proceed to purchase, when you bid you should take into consideration the worst case scenario and that is that they do not remove it.

I hope this makes sense?

Customer: replied 10 months ago.

you suggest that we try and make the contract of sale subject to the removal of the covenant. not a bad idea, but I don't think we would have much chance of doing that. how long might it take to have a covenant removed, and how much would we expect to have to pay for this with a solicitor? I also don't think that the council employee, would put it in writing for me, even though verbally she was quite agreeable. as I'm sure that she would also realize that once I had something in writing, I might use it against the council as you suggest. is it usually easier to have a covenant removed when it only affect one Lot, (as it seems to in this case). the surrounding properties do not have the same covenant placed on them

Expert:  Leon replied 10 months ago.
Good Evening

You can only try and make the request. I too suspect they will not agree.

I cannot say how long it depends on how fast the Council works and what they require form you.

The Application would not be that difficult and a Solicitor would charge you forth their time. Most charge $300 - $400.00 per hour.

If the surrounding properties are zoned the same as the one you are looking at buying it should be easier but this is no guarantee.

I hope this assists you further.

Customer: replied 10 months ago.

I have actually spoken with some of the owners of the neighboring properties, to try and get an idea if they would object to the subdivision. the response was positive, that they would support our application, as they would rather have only a division to two properties, rather than have to deal with a developer, who may want to put 4 units on the site. if you could rate a % on our chances of getting the covenant removed. even if it takes a little while, what do you think? and how much time would the solicitor need to do the work, for the application. thanks

Expert:  Leon replied 10 months ago.
Good Evening

I cannot give you a % chance of getting what you want. I have not got enough information and I am unable to get what I need to give you any estimate.

You should be able to guage that from what the council told you and what the covenant says.

To prepare the application about 1 - 3 hours.

I am guessing because I donot have a copy of it nor details of the zoning.

I hope this is of assistance.


Customer: replied 10 months ago.

yea Ok. thanks alot. you've been helpful. is it too late now, to have a solicitor have a look at it, with copies of the title etc prior to the auction on Sat, to give us a better idea.

Expert:  Leon replied 10 months ago.
Good Evening

I am happy to have been of assistance.

Good Luck with the auction and I hope it all goes well.

If I can assist you in the future please let me know.

I hope this is of assistance. If I have missed anything, or you have any further questions please let me know before leaving any feedback.

If I have assisted please do not forget to leave me with positive feedback.

Leon, Solicitor
Category: Australia Law
Satisfied Customers: 18868
Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
Leon and other Australia Law Specialists are ready to help you

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