Easements and covenants are two of the most overlooked items in a property purchase, yet they can single-handedly derail a development plan. Both are restrictions recorded on the property's title, and unlike a building's condition, you can't always see them just by inspecting the site.
Many investors only discover a problematic easement or covenant after they've already exchanged contracts or, worse, after they've engaged a designer and lodged a development application. Checking the title early can save an enormous amount of wasted time and money.
What An Easement Actually Is
An easement is a legal right for someone else to use part of your land for a specific purpose, even though you own the property. Common examples include drainage easements that carry stormwater from neighbouring properties, sewer easements for council or water authority pipes, and access easements allowing a neighbour to cross your land to reach their own property.
Easements typically restrict what you can build over them. A sewer easement running through the middle of a block, for example, might rule out exactly where you wanted to place a second dwelling or extension.
What A Covenant Restricts
A covenant is a private restriction, often placed on the title when a subdivision was originally created, that limits how the land can be used or developed. Covenants can restrict building materials, minimum dwelling size, the number of dwellings permitted, fencing styles, or even prohibit certain business uses.
- Minimum or maximum dwelling size requirements
- Restrictions on building materials or roof colours
- Limits on the number of dwellings allowed on the lot
- Prohibitions on removing trees or altering landscaping
- Restrictions on secondary dwellings, granny flats, or dual occupancy
How To Find Them Before You Buy
Easements and covenants are recorded on the title and the deposited or registered plan, not on the standard contract of sale summary. A conveyancer or solicitor doing proper due diligence will pull the full title search and plan, then explain exactly what's registered and what it restricts.
Don't rely solely on the real estate agent's disclosure or a quick glance at the contract — request the full title documents and have them reviewed before your cooling-off or finance period expires.
Why This Matters More For Developers Than Homeowners
A homeowner might never notice a minor easement if it doesn't affect where they park or garden. A developer planning a subdivision, duplex, or extension needs every square metre of buildable land to work, and an easement running through the middle of the site can eliminate the project's viability entirely.
Always get a surveyor or town planner to overlay the easement and covenant locations on the actual site plan, rather than assuming they sit conveniently along a boundary.
Can Easements And Covenants Be Removed?
In some cases, an easement that's no longer used can be extinguished, and a restrictive covenant can sometimes be varied or removed through an application to the relevant land titles office or court, often requiring agreement from the benefiting party.
This process is rarely fast or guaranteed, so it should never be the basis of your purchase decision. Treat it as a possible upside if it happens, not a plan you rely on.
Final Word
Easements and covenants sit quietly on the title until they collide with your development plans, at which point they can be expensive or impossible to work around. A thorough title search before you commit to a purchase is one of the cheapest forms of insurance available to a property investor.
Always involve a solicitor or conveyancer experienced in development sites, and have them explicitly confirm whether any registered restrictions affect your intended use of the land.
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