NSW Property Law - How are Covenants Enforced?

[Terry J]

I have a newly built house in an estate that has Design Guidelines that are listed as a covenant "Restriction on the use of land" in our land sales contract. Part of those guidelines are that we are required to have lapped and capped timber fencing.

Our neighbour is refusing to pay half of the fencing costs as they want to have Colorbond fencing and are only agreeing to pay half of the Colorbond price and wanting us to pay for the rest if we insist on going with timber. They are saying the guidelines aren't enforceable and they do not care about them.

Do we have any recourse to push back and have them pay half the cost for the timber fence as required by our contract under Property Law?

 

[Matt King]

Hi Terry,

In short they are there for a reason and are binding on all owners of land. Any owner of land acting against them does so at their own risk of being sued by the original developer, even you and your neighbours could take action against them seeking to restrain the use which breaches the covenant, or claiming damages, including legal costs, arising from the breach- such as devaluation of your land value or (in the case of Councils) an injunction preventing the breach or issuing an order for demolition to rectify a breach.

Councils in NSW may be able to over-ride covenants so that the covenants become of “no effect” if they have appropriate provisions in their Local Environmental Plans. That would be a matter for checking.

Let me know if I can be of any assistance on Matthew King, Wollongong Lawyer: Book Online

 

[Terry J]

Hi Matt,

Thank you for the response. We absolutely want to adhere to the covenants and want to erect the timber fence as required under them but our neighbours are staunchly refusing to contribute to half the costs of the fence as they are claiming the Dividing Fences Act only requires them to pay half of whatever is cheaper. Even though Colorbond is not allowed under the covenant they still think they don't have to contribute half.

 

[Matt King]

They can only rely upon the DF Act so long as they are not in breach of the Covenant. It all depends on how far you want to take it as legal costs would outweigh the cost of the fence quite easily. Those costs, or at least a significant portion of them, would be recoverable from your neighbour if you were successful in any application to the Land and Environmental Court.

 

[Terry J]

So I suppose we need to weigh up the risk of someone noticing a fence and complaining to the developer, which might then require us to rip it down and rebuild, versus the cost of legal action to force the neighbour to erect the correct fence now as required by the covenant?

 

[Tripe]

Do your neighbors have the same fencing covenant?

If they don't have the same fencing obligation as you, I am struggling to see why they would have to pay more than 50% of the cost of a normal wooden Pailing fence

 

[Terry J]

Yes they have the same fencing covenant.

 

[Tripe]

Just issue them with notice to fence forms and quote the relevant fencing covenant.

You shouldn't have much trouble getting 50% out of them if it ends up in mediation.