When purchasing property, it's essential to understand the concept of encumbrances, as they can significantly affect how you use and manage your land. Encumbrances are legal claims or restrictions on a property that can impact its value, use, or transferability. Below is an explanation of the key types of encumbrances and what they mean for property owners.
What is a benefitting easement and how does it affect property ownership?
Benefitting Easement: A benefitting easement grants the owner of a particular lot the right to use another person’s land for a specific purpose, even though they do not own that land. This means that the owner has the rights outlined in the easement agreement over the burdened property. Common examples of benefitting easements include easements for access or drainage.
What is a burdening easement, and how does it affect the use of your property?
Burdening Easement: A burdening easement is an easement that affects your lot by giving the owner of the benefitting land specific rights over the area of the easement on your property. This means you may not be allowed to build any structures on or over the easement area or use it in any way that interferes with the rights of the benefitting party. If you do, the owner of the benefitting land may have the right to take legal action against you or even remove the structure to access the easement, without being required to compensate you for any damages.
What are building covenants, and how do they affect the types of buildings and structures that can be constructed on the land?
Building covenants, also known as estate covenants, land covenants, restrictive covenants, or development control by-laws, establish the rules governing the types of buildings and structures that can be constructed on the land. These covenants are typically created and enforced by the developer or body corporate from whom you are purchasing the land, such as in a master-planned estate. The terms of the covenant are included with the contract for your review, ensuring you are fully aware of the rules and restrictions you must adhere to.
A copy of the building covenants document should be provided to any architect, draftsmen, surveyors, builders, and trade contractors engaged prior to the commencement of construction work to ensure compliance with these covenants. If the covenant requires passing it on to future owners, it must be attached to the contract for sale when the property is sold to avoid breaching the agreement and risking legal action from the developer or body corporate. The Vegetation Management Act 1999 regulates the clearing of vegetation in Queensland, and a clearing permit may be needed before clearing protected native plants, although exemptions may apply.
What are unregistered encumbrances, and how might they affect the property?
It should be noted that there may be unregistered encumbrances and other government rights or interests that could affect the Property, such as sewerage or drainage lines on the Property, or rights reserved to government authorities. It is important to understand that not all of these unregistered encumbrances will be discovered through the searches conducted.
What are the implications of a burdening easement for the property owner?
The owner of the burdened property continues to own the land, but the owner of the benefited lot holds certain rights over the area of the easement.
A property burdened by an easement may not be able to have any structure built on or over the easement land or use the easement land in any way which interferes with the rights of the benefited party.
Otherwise, the owner of the land benefited by the easement may have the right to sue, or to destroy the structure to gain access to the easement without being liable to compensate for the damage.
Building Covenant Compliance for Off The Plan Buyers
When purchasing a property off the plan, it's crucial to understand and comply with building covenants attached to the land. These covenants often dictate specific requirements that must be met during the construction process. To avoid any issues, it's important to share the building covenants document with your architect, draftsmen, surveyors, builders, and trade contractors before construction begins. Additionally, ensure that any required approvals from the Seller are obtained before starting work. Remember, these covenants also apply to future Buyers, so include a copy with any subsequent sale contract to ensure continued compliance.
What are building covenants, and how do they affect the types of buildings and structures that can be constructed on the land?
Building covenants, also known as estate covenants, land covenants, restrictive covenants, or development control by-laws, establish the rules governing the types of buildings and structures that can be constructed on the land. These covenants are typically created and enforced by the developer or body corporate from whom you are purchasing the land, such as in a master-planned estate. The terms of the covenant are included with the contract for your review, ensuring you are fully aware of the rules and restrictions you must adhere to.
A copy of the building covenants document should be provided to any architect, draftsmen, surveyors, builders, and trade contractors engaged prior to the commencement of construction work to ensure compliance with these covenants. If the covenant requires passing it on to future owners, it must be attached to the contract for sale when the property is sold to avoid breaching the agreement and risking legal action from the developer or body corporate. The Vegetation Management Act 1999 regulates the clearing of vegetation in Queensland, and a clearing permit may be needed before clearing protected native plants, although exemptions may apply.
What must Off The Plan Buyers do to ensure covenant compliance?
Off The Plan Buyers should provide a copy of the building covenants document to any architect, draftsmen, surveyors, builders, and trade contractors that you may engage prior to the commencement of construction work to ensure compliance with these covenants.
Do building covenants require Seller approval of plans?
A common requirement of building covenants is that all building plans are submitted to the Seller for approval before construction commences. If the covenant requires this, it is extremely important that Buyers comply with these requirements. For any subsequent sale of the property, a copy of the building covenants must be included with any contract for sale as the new Buyer will also be required to comply with the building covenants.
