Encumbrance/ covenant

The title may record an encumbrance or covenant on the property. It is important to check all the way through the title, as the information may not be recorded at the top. 

A land covenant is an interest in land according to the Property Law Act 2007 and is registered on the title of a property. The intent of a covenant is to limit or restrict the owner and any future owners as to how they use the land/property. 

Some encumbrances/covenants may be private agreements between parties; others may be imposed by the council. It is becoming increasingly common for developers to use private covenants for controlling how future owners both develop and maintain the land, particularly for residential developments that are being marketed with certain characteristics. 

The need for council-imposed covenants is generally identified through the assessment of a land-use consent application, or for longer-term protection through a subdivision consent application. Information on why a council encumbrance or covenant was imposed should be held on the relevant council property file. 

Types of restrictions that may be imposed through covenants include: 

  • use of materials 

  • minimum size of dwelling 

  • protection of native bush, wetlands, etc. 

  • protection of historic buildings and features 

  • bulk and location, particularly heights and views 

  • approval of plans by the developer (even after building/resource consent is obtained) 

  • duration of the construction period 

  • use of the site for a home occupation 

  • the use of minor residential units 

  • pets and animals 

  • Queen Elizabeth II (QEII) conservation covenants. 

A council would generally only enforce a council-imposed covenant, and would not get involved with the enforcement of private covenants.