Easements and Covenants: What You Actually Can't Do With Your Own Land

Easements and restrictive covenants are two different kinds of restriction recorded against your title — and both are different again from the zoning and overlays set by the planning scheme. If you're planning an extension, a granny flat, a knock-down rebuild, or a subdivision, you need to check all three separately, because one doesn't imply the others and they don't overlap. A clean zoning check tells you nothing about what a covenant or an easement on the title will let you do.

That gap is where buyers get caught. Below is what each restriction actually is, who can enforce it, where to find it, and what to do before you commit to a plan for the land.

The short version:

• Easements and covenants live on the title; zoning and overlays live in the planning scheme — three separate systems you have to check independently.
• A council building permit does not override a private restrictive covenant — a benefiting neighbour can still stop you through the courts.
• Confirm easements and covenants from the title, plan of subdivision and Section 32 before you rely on a plan to extend, rebuild or subdivide.

The three separate layers of restriction on Victorian land

Most buyers think of "what can I build here?" as a single question answered by the council's zoning. It isn't. There are three independent systems, and a property can be affected by any combination of them:

The critical point: easements and covenants live on the title, while zoning and overlays live in the planning scheme. A buyer who only checks the planning scheme has checked one of three systems. That's the practical gap most people fall into — they plan a future extension, granny flat or subdivision based only on the zoning, then get caught out later by an easement or covenant the zoning check never would have revealed.

Easements and covenants are the two you'll meet most often, but they aren't the only things that can be registered against a title — a thorough title check looks beyond just these two.

Easements: someone else's right to use part of your land

An easement is a right for a specific party to use a defined strip or area of your land for a defined purpose — without owning it. You still own the ground; they just have an enduring right to use it for that one thing. The most common types in Victoria are:

• Drainage easements
• Sewerage easements
• Right-of-carriageway easements (a shared access route or driveway)
• Electricity supply easements

What an easement stops you doing

In practical terms, you generally cannot build a permanent structure over, or otherwise obstruct, an easement without the consent of the party it benefits. This is the part that surprises people: the land is yours, but the easement carves out a slice of it that you can't freely build on.

Building over an easement without proper authorisation isn't a paperwork technicality you can quietly ignore. You can be required to remove the structure later — at your own cost — and it can complicate a future sale when a buyer's conveyancer picks it up. A garage, a deck, a pool or an extension that clips an easement can turn into an expensive problem years after you've forgotten it was there.

Where to check for easements

Registered easements must be disclosed to you before you buy. Look at:

• The Register Search Statement (the title itself), and
• The Plan of Subdivision.

Both of these must be included in the Section 32 vendor statement the seller gives you before you sign. One caveat worth keeping in mind: not every easement is necessarily recorded on the title — some can arise or exist without being registered — so a title search alone isn't a complete guarantee. That's why it pays to cross-check against the plan of subdivision and, where it matters, what's physically on the ground (a drainage line, a shared driveway, a manhole in the back corner). If you're planning to build on a particular part of the block, the plan of subdivision is where you find out whether an easement runs through exactly the spot you had in mind. It's worth reading that whole document bundle carefully, and cross-checking it against your plans if you're weighing up an extension or knock-down rebuild.

Restrictive covenants: a private rule about what you can build

A restrictive covenant is a private-law restriction on what can be built or done on the land. Many of them date back to the original subdivision — a developer decades ago decided the estate should look a certain way, and wrote that intention into the titles. Common covenant restrictions include:

• Single dwelling only on the lot
• Minimum building material or construction standards
• Height limits
• No further subdivision

Any one of these can quietly kill a plan. A "single dwelling only" covenant blocks the dual-occupancy you were banking on. A "no further subdivision" covenant blocks the subdivide-and-sell strategy the zoning might otherwise allow — so if your numbers depend on splitting the block, check this specifically before you offer.

Who enforces a covenant — and why council can't save you

Here's the part that catches even experienced buyers: a restrictive covenant is a real, enforceable private property right. The party who benefits from it — commonly a neighbour, or in some subdivisions a defined group of neighbouring lot owners — can seek an injunction or damages if you breach it.

That enforcement is genuinely separate from anything council planning can do. A council building permit does not override a private restrictive covenant. You can have your permit in hand, entirely lawful in planning terms, and still be stopped by a neighbour enforcing a covenant on your title. The two systems answer to different people and different rules.

Can you get rid of an old covenant?

Sometimes — but treat the route as a genuine, specialist process, not a formality. The best-known pathway is to apply to have an old restrictive covenant discharged or modified under section 84 of the Property Law Act 1958 (Vic). That specific jurisdiction sits with the Supreme Court of Victoria — VCAT does not currently have the section 84 jurisdiction (its involvement has been floated as a possible future reform, but that is not the law today). So the point to hold onto is narrow but important: you cannot use VCAT to run a section 84 discharge or modification.

Separately, a planning-permit pathway to vary or remove a restriction also exists under the Planning and Environment Act 1987 (Vic) — a different system with its own tests and its own decision-maker. Which pathway (if any) is realistic for a given covenant is exactly the kind of question to put to a specialist property lawyer before you rely on being able to shift the covenant at all; the two routes are not interchangeable and neither is a formality.

The grounds below summarise the shape of the section 84 test — they're not the exhaustive statutory wording, and the section carries more limbs than fit in a two-line table, so treat them as a guide rather than a checklist. Broadly, the Court must be satisfied of one of the following (summarised) grounds:

And the practical caveat matters as much as the grounds. This is a specialist process — whichever pathway you look at. It is not guaranteed to succeed, and it can be actively opposed by neighbours who benefit from the covenant. The honest planning assumption is this: treat an existing covenant as binding unless and until it is formally varied or removed. Don't assume it away, and don't assume the process is a quick fix.

The practical gap buyers keep falling into

The recurring failure looks like this. A buyer decides a property is right for them because the zoning permits what they want to do — extend, add a granny flat, or subdivide. They never check the title for easements or covenants, because they didn't realise those live somewhere else. Then, after settlement, the drainage easement running through the back yard or the single-dwelling covenant on the title turns their plan into a dead end.

The zoning check was never going to reveal either restriction, because easements and covenants are recorded on the title, not in the planning scheme. Checking one is not checking the other — and the planning scheme carries its own separate traps, which Delora's overlays guide walks through.

What to actually do before you rely on a plan

If your reason for buying depends on doing something specific with the land, work through these steps before you're committed:

1. Check the title and plan of subdivision for easements AND covenants — separately from checking the zoning. Do not let a clean zoning result stand in for a title check, and remember a title search may not capture every easement.
2. If an easement crosses the part of the land you plan to build on, ask specifically whether the authority that benefits from it would consent to what you're planning — before you buy on that assumption.
3. If a restrictive covenant would block a specific plan, get advice on whether it's realistically variable — and by which pathway — before you rely on that plan going ahead.
4. Have your conveyancer specifically confirm which easements and covenants affect the property and summarise, in plain language, what each one actually restricts — not just flag that they exist. "There is a covenant on this title" is not enough; you need to know what it stops you doing.

How to read this guide

This is a general, structural explanation of how easements, restrictive covenants, and planning controls fit together under the Victorian property law framework, current as at July 2026. It is framed around the Transfer of Land Act 1958 (Vic), the Property Law Act 1958 (Vic) and its section 84 discharge-and-modification route through the Supreme Court of Victoria, the Planning and Environment Act 1987 (Vic), and the Sale of Land Act 1962 (Vic), which governs the Section 32 vendor statement. It is deliberately structural: it tells you what these restrictions are, who enforces them, and where to find them — not what's on any particular title. Every property is different, and the specific easements and covenants affecting a given lot can only be confirmed from that property's own title, plan of subdivision, and Section 32.

This is general information, not legal advice — get advice from a lawyer or conveyancer on your specific title before acting.

Next: check the other two layers

Once you've cleared the title, you still have the planning scheme to check — the third system that can override a plan the zoning alone seemed to allow. Read Delora's overlays guide next to see how zoning and overlays sit outside your title and what they can restrict, so you've covered all three layers before you commit.

Frequently asked questions

What's the difference between an easement and a covenant?

An easement is a right for a specific party to use a defined part of your land for a defined purpose — like drainage, sewerage, shared access, or electricity supply — without owning it. A restrictive covenant is a private-law restriction on what you can build or do on the land, such as single-dwelling-only or no further subdivision. Both are recorded on the title, but they're legally different things and are checked separately.

Does my council building permit override a restrictive covenant?

No. A council building permit and a private restrictive covenant come from two separate systems. A permit shows your plans are acceptable in planning terms, but the covenant is a private property right that a benefiting neighbour or group of lot owners can still enforce through the courts. You can hold a valid permit and still be stopped by a covenant.

Can I build over an easement on my property?

Generally not without the consent of the party the easement benefits. Building a permanent structure over an easement without proper authorisation can mean being required to remove it later at your own cost, and it can complicate a future sale when a buyer's conveyancer identifies it. If your build touches an easement, ask the benefiting authority for consent before you rely on the plan.

How do I remove or change an old restrictive covenant?

There are two separate pathways, and they aren't interchangeable. One is to apply under section 84 of the Property Law Act 1958 (Vic) to have the covenant discharged or modified — that specific application goes to the Supreme Court of Victoria, not VCAT — where the Court must be satisfied of a statutory ground, such as that the restriction has become obsolete, secures no practical benefit, or that everyone entitled to its benefit consents. The other is a separate planning-permit pathway to vary or remove a restriction under the Planning and Environment Act 1987 (Vic). Both are specialist, neither is guaranteed, and both can be opposed — so get advice on which (if any) is realistic before treating the covenant as removable.

Can I use VCAT to remove a covenant?

Not for a section 84 discharge or modification — that jurisdiction currently sits with the Supreme Court of Victoria, and its transfer to VCAT has only ever been discussed as a possible future reform. That said, the section 84 route is not the only mechanism; a separate planning-permit pathway to vary or remove a restriction also exists under the Planning and Environment Act 1987 (Vic). Because the pathways differ and the right one depends on the specific covenant, this is a question for a specialist property lawyer rather than an assumption to make yourself.

Are there other restrictions on a title besides easements and covenants?

Yes. Easements and covenants are the most common, but a title can carry other restriction types too. That's another reason to have your conveyancer review the full title, not just scan for the two most familiar restrictions.

Where do easements and covenants show up when I'm buying?

Registered easements appear on the Register Search Statement (the title) and the Plan of Subdivision; restrictive covenants appear on the title. All of these must be included in the Section 32 vendor statement you receive before signing under the Sale of Land Act 1962 (Vic). Bear in mind a title search may not capture every easement, so cross-check the plan and, where relevant, what's physically on the ground. Ask your conveyancer to summarise, in plain language, what each easement and covenant actually restricts — not just to note that they exist.