• A covenant is a set of rules and restrictions that affect how a property can be used. Typically it will be imposed at the time of subdivision or redevelopment.
• In a Unit Title property, it is usual that the Body Corporate must agree to any alterations, and they will have rules setting out the basis on which alterations or new work can proceed. If changes to the unit trigger changes to the unit allocations, this can become an expensive and protracted process.
• Some multi-unit housing is in the form of company shares, where the company controls and owns the property and leases it to the occupants by way of an occupation licence, and (like the Unit Title arrangement), there will be a process and rules for alterations and new work.
• In a cross lease arrangement, each of the owners owns the overall property collectively, and each unit it is leased to an occupant, with lease terms controlling how the unit is used and may be altered.
It is in the nature of these arrangements that they are subject to the vagaries and personalities of and between neighbours. These can be problematic, and expressed in subjective ways, rather than being rational or objective.
We have had claims where, for various reasons, members have fallen foul of restrictions on the sites or the building on them. Some examples:
• Architects becoming the focus of a dispute between neighbours
• Sketch designs unrealisable when accurate survey and legal information is later available
• Existing fences and/or buildings straying over boundaries
• Misunderstandings about the use of common property, accessways, and rights of way
• Alterations to cross-lease properties without first seeking the approval of other cross-lease owners
• Ditto to unit title properties, where the need for approvals and re-assessments of unit allocations has not been recognised before the design proceeds
• Retail tenancies within shopping malls, where lease conditions have been assumed, instead of being checked
• Colour schemes not being complied with; ditto height controls, cladding materials, “standard of design”, viewshafts, site access for construction……
Land Covenants, Unit Title restrictions and Cross Lease restrictions should be shown on the certificate of title (and/or in a lease or Body Corp agreement), and it is not in your area of expertise as designer to interpret them, nor to advise the client in respect of them. But you do have a duty to recognise when and where they exist, or might exist, and to draw your client’s attention to the need for proper advice – maybe from a lawyer and/or surveyor. That advice needs to be provided to you in writing before or at the earliest stage of your design.
It will be your problem if your design does not meet the design criteria (if any) set out in a covenant. But where your client needs to seek approval from others, you should record that in writing and make it clear that it is their responsibility, not yours. Likewise, if it takes numerous design iterations to fit your client’s aspirations to their neighbours expectations, that is your client’s problem, not yours. The approval should be recorded in such a way that there can be no later doubt about the relevance of subsequent changes.