Obsolete Restrictive Covenants

22 July 2026 in Property Dispute Lawyers | 3 min read | skip to FAQs

What are Obsolete Restrictive Covenants?

A restrictive covenant is a private agreement between landowners that limits the way land can be used or developed. It is recorded on the title and binds future owners of the burdened land, and includes restrictions such as, development height limit, building materials, number of separate buildings per lot and so on.

A restrictive covenant continues indefinitely, unless a sunset date was specified. The inclusion of a sunset date in relation to restrictive covenants is rare. Restrictive covenants are generally introduced because it is that the restrictions will improve the amenity of the properties. However, they tend to become outdated due to changes in policy and public expectations and are difficult to be removed. Thus, becoming obsolete.

How can Obsolete Restrictive Covenants be Removed?

Agreement between the parties

All parties of the burdened and benefited land can agree to remove the restrictive covenant provided it does not specify a third party for its removal under section 47 of the Real Property Act 1900 (NSW). With this method, it can be difficult to identify all the benefited land let alone obtain agreement from all parties, some schemes include many properties.

Order of the Court

Section 89 of the Conveyancing Act 1919 (NSW) allows the Supreme Court to make an order to modify or remove the covenant where there has been:

1. A change in the use of the land; or
2. A change in the character of the neighbourhood; or
3. In circumstances where the covenant unreasonably impedes development.

However, proceedings in the Supreme Court can be expensive and the court tends to be conservative when dealing with these matters.

Application to the Registrar General

Pursuant to section 81A of the Real Property Act 1900 (NSW), an application can be made to the Registrar General of the restrictive covenant has been on title for at least twelve years and it involves:

1. Obsolete building material; or
2. Fencing; or
3. Value of structures.

However, this can be onerous as all owners of the burdened land must join or consent to the application and owners of the benefited land must be identified and notified by way of direct service or advertisement. The property dispute lawyers at Brander Smith McKnight Sydney Lawyers can represent you and negotiate on your behalf to have obsolete restrictive covenants removed. We have extensive experience in this legal area.

What Reforms to Restrictive Covenants have been Proposed?

The Office of the Registrar General’s discussion paper includes the proposed amendments:

Expansion of Obsolete Covenants

It has been proposed that amendments should be made to Part 8A of the Real Property Act 1900 (NSW) to expand the category of covenants deemed ‘obsolete’ and to streamline the notice provisions.

Imposition of Time Limits

There has been discussion of a proposal to impose time limits on new restrictive covenants whereby the restrictive covenant would automatically expire.

Supreme Court powers

It has been proposed that the powers of the Supreme Court under section 89 of the Conveyancing Act 1919 (NSW) to extinguish covenants should be broadened and extended.

How can BSM Sydney Lawyers assist you?

The property dispute lawyers at BSM Lawyer Sydney have experience with obsolete restrictive covenants. We remain up to date with the most recent legislation and are able to provide you with accurate, easy to understand legal advice that is tailored to your personal situation. The property dispute lawyers at Brander Smith McKnight Sydney Lawyers are renowned expert negotiators and are able to advocate for you and negotiate to have obsolete restrictive covenants on a property removed. Our property dispute lawyers offer a free 20-minute consultation.

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