Quick Answer
A covenant on a WA property title is a legally binding encumbrance that dictates what you can or cannot do with the land. Finding a covenant property title Western Australia restriction before settlement is vital because breaching it can result in court orders, fines, or stalled development. A Current Title search through TitleFinder reveals these registered restrictions.
Understanding Covenants on WA Property Titles
A covenant is a written agreement on a property title that binds the current and all future owners. In Western Australia, covenants fall into two categories: restrictive and positive.
- Restrictive covenants: Limit how you use the land. Common examples include prohibitions on building above a single storey, restrictions on using certain exterior materials, or bans on subdividing the lot.
- Positive covenants: Require you to perform an action. These are less common on individual titles but can include obligations to maintain a shared driveway or contribute to the upkeep of a boundary fence.
Because covenants bind the land, they transfer automatically to every new owner. You cannot simply ignore an old restriction by claiming you were unaware of it.
WA Property Buyer Checklist: Covenants to Verify
When you order your title search, you must check the Second Schedule of the official property records. This section lists all encumbrances, including covenants, easements, and caveats. Use this checklist to assess the risks:
- Locate the dealing number: The Second Schedule provides a reference number for the covenant. The title alone only summarises the existence of the encumbrance; it does not contain the full text of the rules.
- Order the instrument or dealing: You must order the associated instrument document to read the exact wording of the covenant. Vague terms on the title often translate to highly specific building restrictions in the instrument.
- Check for building envelopes: On newer subdivisions, covenants often impose a building envelope that restricts where you can construct a house on the lot.
- Verify sunset clauses: Some older covenants include an expiry date. However, many run in perpetuity unless legally discharged.
- Review survey-strata by-laws: If you are purchasing a survey-strata property, check both the title encumbrances and the scheme by-laws. Conflicting rules between a covenant and a by-law can complicate future alterations.
- Inspect for caveats: A caveat acts as a warning that someone claims an interest in the land. While not a covenant, a caveat can prevent you from registering your ownership until it is withdrawn or resolved.
Comparing Covenant Risks: Green Title vs Survey-Strata
In WA, the type of title heavily influences how covenants are created and enforced. Green title (freehold) and survey-strata properties carry different risk profiles.
| Feature | Green Title | Survey-Strata |
|---|---|---|
| Covenant origin | Prior owner transfer or subdivision condition | Scheme by-laws or management statement |
| Enforcement | Original covenantor or an appointed authority | Strata company or other lot owners |
| Common risk | Single dwelling limits, material build controls | Alteration limits, shared maintenance rules |
WA-Specific Risks: Rural Titles and Mining Interests
Buyers of rural properties face additional, highly specific covenant risks. Rural titles in WA often carry older, vaguely worded covenants regarding stock grazing, vegetation clearing, or fencing obligations. Always order the original instrument to determine if these outdated rules still apply or if they have been legally varied.
WA also carries unique risks regarding mining interests. While a mining tenement is a separate interest and not a covenant WA restriction, it functions similarly by restricting your exclusive use of the surface land. Always check official property records to see if a mining lease or exploration licence overlays your property, as this can severely limit development rights.
What to Order and When
A Current Title / State Lease search through TitleFinder costs $74.50 AUD and shows the current registered encumbrances, including covenants. However, the title document itself does not contain the full covenant text. It only shows the reference number.
If the Second Schedule of your title search lists a covenant, you must order the supporting instrument or dealing document. This document answers the question of exactly what the covenant restricts. For survey-strata properties, order the scheme documents and by-laws alongside the title.
Order these documents during your cooling-off period or due diligence window. Waiting until after settlement leaves you legally bound by restrictions you may not be able to comply with.
Frequently Asked Questions
Can I remove a covenant from a WA property title?
Removing a covenant requires a legal application to the court or an agreement with the beneficiary of the covenant. It is often an expensive and uncertain process. You should never assume you can remove a covenant after purchase. Always base your buying decision on the assumption the restriction remains in force.
Does a title search covenant include strata by-laws?
No. A title search covenant only shows encumbrances registered against the specific title. For survey-strata properties, you must order the scheme by-laws and management statements separately to see all the rules governing the use of the lots and common property.
What happens if I build against a restrictive covenant?
If you breach a covenant, the person or authority who benefits from it can apply to the court for an injunction to stop your build, force you to demolish the unapproved structure, or claim damages. Local councils often enforce their own restrictive covenants regarding building materials and subdivision.
Note: This article provides practical due diligence guidance only and does not constitute legal advice. Consult a qualified conveyancer or solicitor for advice specific to your contract and property.
Order the right TitleFinder document
Use this guide as a reference, then order the actual record that answers your question:
- WA Title Search — $79.90
- WA Survey Search — $85.90
- WA Document Search — $91.80
If you are unsure, start with the current title search, then add the plan or instrument if the title points to one.
Need the title search? Use the TitleFinder product links above to order the current title, plan, instrument or state-specific property record you actually need.