VIC Terms of an Old Covenant - Can Anything be Done?

[nudum pactum]

In the 1920s, the subdivision in which I live had a covenant placed over a few hundred lots to the effect that:

"...for the time being of the said land (hereby transferred except as aforesaid) [the transferees] will not at any time erect or build or cause or suffer to be erected or built on any one of the lots on the said Plan of Subdivision hereby transferred, except as aforesaid, more than one house, or shop with respective necessary outhouses and further that the land to be enclosed with such house or shop with respective necessary outhouses have a frontage of not less than the frontage and an area not less than the area shown on the said Plan of Subdivision in connection with each Lot and [the transferee] hereby requests that the above covenants shall appear as an encumbrance on the Certificate of Title to be issued to [the transferee] in respect of this Transfer and all subsequent transfers of the land and shall and will run with the said land hereby transferred except as aforesaid..." [Emphasis mine]​

The instrument generated by landata in relation to this covenant runs to hundreds of pages. It makes it clear that over the years there have been many successful applications to the supreme court to have the covenant lifted from individual lots. The owner of a neighbouring property (I would guess forty years ago) extensively altered the property to convert it to two units (two independent living areas, two garages, two back yards, two front entries) on the one title.

However it seems that the covenant was never lifted from this property to allow such work. In the intervening period, the current owners (landlords for the last twenty years) have neglected the property and it has descended into a squalid slum.

It seems to me that the point of the initial covenant would have been to reduce the likelihood this sort of situation arising. The question is "Can anything be done about it now?"

If a property owner ignores and contravenes covenant, what happens?

 

[Tim W]

What history of approvals etc is available from Council?

 

[nudum pactum]

Don't know. Does a building permit trump a covenant? I'm almost certain the current owners were not the ones who created the dual occupancy arrangement. I suspect they bought it that way perhaps 20 years ago. The mods could have been 20 years old by that stage.

 

[Rod]

Does a building permit trump a covenant?

It is not a question of priority. Both can be used to achieve a similar result.

Having the council do the work for you rather than going to court to enforce a covenant seems like the better solution. Attempting to enforce a covenant after 20 years of inaction is problematic at best, and an expensive waste of money if unsuccessful.

 

[nudum pactum]

@Rod. Good answer, many thanks! I understand the pragmatics of pursuing the council option, but my question was more about what teeth an ancient covenant like this actually has.

The impression I'm getting in relation to my original question (which was edited by somebody, possibly changing its flavour) is that if someone acts at variance with the terms of a covenant, and nobody does anything about it at the time, they'll probably get away with it provided "enough time" passes between the act and the objection. I imagine forty years (the approximate period in question here) probably qualifies as "enough time".

 

[Rod]

I imagine forty years (the approximate period in question here) probably qualifies as "enough time".

I can't say with certainty as it is up to a judge. If I was a betting man I'd be putting my money on the other party.