A protective or restrictive covenant is an interest in land according to the Property Law Act 2007 and is registered on the record of title.
Restrictive covenants are the most common, by which the owner of the burdened property agrees with the owner of the benefited property (who receives the benefit) not to take some action that might otherwise have been done. Property owners are bound by covenants to
perform or not perform in specified ways.
Covenants may be private agreements between parties or may be imposed by the council.
Information on why a council encumbrance or covenant was imposed should be held on the relevant council property file.
It is common for developers to use private covenants commonly known as building covenants, to control how future owners both develop and maintain the land. This is especially relevant for residential developments that are being marketed with certain characteristics.
The developer often drafts covenants relating to the nature or style, size and value of buildings to be erected, or imposes other limitations on the use of the property. While in most cases, identical covenants are applied to each property within the subdivision (as a blanket provision), some developers register individual covenants on each parcel of land prior to sale.
The developer retains their option to register or not register covenants on the remaining land. If the land needs to be sold under urgency, then it is possible that the subject properties will be sold without the covenants that were applied to earlier property
transactions in the same subdivision.
Types of protections and / or restrictions that may be imposed through covenants include:
- Use of materials for buildings
- Size, style or colour of building
- Setback and side-line from roads or adjacent properties
- Protection of native bush, wetlands, and other conservation issues
- Protection of historic buildings and features
- Bulk and location, particularly heights to preserve views
- Requirement for approval of plans by the developer (even after building and resource
consent is obtained) - Required timeframe for construction
- Use of the site for a home occupation
- The use of minor residential units
- Restrictions on pets and animals allowed to live at location.
