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Title to land (both registered and unregistered) may show that the owner of the land, or a predecessor in title, has entered into covenants concerning all or part of the land. These covenants may be positive in nature (such as a covenant to maintain a fence) or restrictive (such as a covenant not to build next to a boundary). Covenants will always be enforceable between the original covenanting parties but a distinction is made between positive and restrictive covenants for the purposes of establishing their effect on successors in title to the original covenanting parties.

This Checklist is for use as part of a due diligence exercise where a property is subject to and/or has the benefit of one or more restrictive covenants. These covenants may be:

1. •

   imposed for the landowner’s own benefit; these are personal and are only enforceable by the original parties to the covenant unless expressly assigned to a third party

2. •

   part of a scheme, such as a building scheme, where covenants are intended to be mutually enforceable—see Practice Note: Restrictive covenants—nature and characteristics—Building schemes