Easements, covenants and your granny flat —
what the title check finds, and what it means.

Every Victorian lot has a certificate of title — the register entry recording who owns the land and what encumbrances sit on it — and a plan of subdivision, the drawing that created the lot and marked out its boundaries. Between them, these two documents disclose the three title-level constraints that matter for a granny flat: easements, restrictive covenants and Section 173 agreements. None of them appear on a planning-scheme map, which is why a project that clears every zone and overlay test can still be reshaped — or stopped — by what is on the title.

An easement is a right someone else holds over a defined strip of your land — most commonly a water corporation’s right to run and maintain sewerage or drainage assets, or a council’s right over a stormwater drain. On the plan of subdivision, easements appear as labelled strips (E-1, E-2 and so on) with a schedule stating their width, purpose and who benefits. In the suburbs where most granny flats get built, the drainage and sewerage easements typically run along the rear or side boundary — which is exactly the part of the block a backyard build cares about.

A restrictive covenant is different in kind: it is a private promise written onto the title, usually by the original developer, restricting what can be built on the lot — and it binds every later owner. A Section 173 agreement is a contract between a landowner and the council, made under section 173 of the Planning and Environment Act 1987 and recorded on title, which can likewise limit development — for example by capping the number of dwellings. Both survive changes of ownership, and both operate independently of the planning-permit rules covered in our VC253 small second dwelling guide — that guide’s eligibility checklist includes "clean title" as a condition for exactly this reason.

Getting your own copy is straightforward: the certificate of title and plan of subdivision can be ordered online through LANDATA, Victoria’s land-registry service, for a small fee and are usually delivered within minutes. If you would rather not decode the documents yourself, E2ES orders and reads them as part of the free site assessment — the title check is the first thing we do, before a single design decision is made.

The cleanest answer to an easement, in most cases we’ve seen, is simply not to build over it. No consent application, no authority assessment timeline, no conditions on the build — the dwelling is positioned clear of the easement strip, and the easement drops out of the project entirely.

This is where building modular with fixed floor plans genuinely helps. E2ES builds two fixed footprints — a 30 m² studio, a 60 m² two-bedroom — and because each footprint’s exact dimensions are known before any design work starts, we can test real placements against the easement, the setbacks and the rest of the block at the free site assessment. A custom design discovers its siting conflicts after the drawings are paid for; a fixed footprint discovers them on day one, on a plan of subdivision, for free.

Two of our delivered projects show how this plays out. On a Narre Warren studio build, the block carried a drainage easement and the sewer tie-in sat more than two metres deep — the studio was sited over a metre clear of the easement at the permit stage, so no build-over consent was ever needed and the easement never touched the timeline. On a Hampton Park two-bedroom build, a cluster of old sheds sat partly over the easement; every shed was cleared and the new dwelling re-sited hard against the compliant boundary line instead. Different blocks, same principle: position the building so the easement question never has to be asked.

Re-siting is a balancing act rather than a free move — shifting the dwelling changes its relationship to setbacks, private open space, existing structures and access, and on a tight block the placements that clear the easement may be few. That is exactly the trade-off the site assessment is for: you see the workable positions, in writing, before committing to anything.

Everything else on this page is negotiable engineering. A restrictive covenant is not — and it deserves the most honest paragraph in this guide. Covenants are private law: a promise on the title, enforceable by the neighbouring owners who benefit from it, that no planning reform can switch off. The VC253 exemption that removed the planning permit for small second dwellings expressly does not override the title — a covenant that prevents a second dwelling keeps preventing it, no matter what the planning scheme now says. This is a different kind of constraint from the overlays on the planning-scheme maps, which are public planning controls with their own rules and exemptions.

The covenants that matter most for granny flats are the "single dwelling only" era covenants — wording to the effect that no more than one dwelling may be constructed on the lot — which developers placed routinely on estate titles from roughly the 1990s onwards. They are especially common across Melbourne’s growth-area estates, the same suburbs where blocks are otherwise ideal for a second dwelling. Whether a particular covenant actually catches a granny flat turns on its exact wording: covenants vary in their drafting, and interpreting one is a legal question, not a building question. Our role is to find the covenant and flag it — where the wording is arguable, you may need a property lawyer’s read, and our assessment tells you whether the project is worth that step.

Can a hostile covenant be removed or varied? In principle, yes — Victoria has several routes, including a planning-permit process to vary a covenant and an application to the Supreme Court under the Property Law Act — but every route is slow, costly and genuinely uncertain, and the neighbours who benefit from the covenant are entitled to object. We will not dress this up: a covenant squarely drafted against a second dwelling can stop the project, and the variation pathways are not something to build a budget on.

A Section 173 agreement is checked the same way and can have the same effect: it is an agreement with council, recorded on title, and some of them cap the number of dwellings on a lot or restrict further development. Ending or amending one generally requires the council’s agreement. Like a covenant, it binds regardless of the planning exemption — and like a covenant, the only sensible time to find it is before money is spent.

That last point is the whole design of our process: the title is checked first, not last. The reading of the certificate of title, the covenants and any Section 173 agreement happens at the free site assessment — so if the title genuinely blocks the project, you find out at step zero, having spent nothing on design, engineering or applications.

Everything in this guide collapses into one practical step, and it costs nothing: before you commit to anything, E2ES runs a site + title assessment that reads the documents and walks the block. On the title side, we order and review the certificate of title and plan of subdivision, identify every easement with its width, purpose and beneficiary, and read any restrictive covenant or Section 173 agreement for wording that could catch a second dwelling — flagging anything that needs a lawyer’s eye rather than guessing at it.

On the siting side, we test our two fixed floor-plan footprints against the real constraints of your block — easement strips, setbacks, existing structures, access and services — so you see which plans fit where, clear of the easement, before any design conversation starts. And because title constraints are only half of the "what could stop this" question, the same assessment cross-checks the public-planning half: zone eligibility under VC253 and every overlay on the land, from heritage to bushfire and flood.

The output is a written go/no-go for your specific address: which pathway your block is on, where the buildable positions are, and whether anything on the title needs a professional read before you spend a dollar. In most cases we’ve seen, the answer to an easement is a better site plan — and the value of the covenant check is that when the answer is no, you hear it at step zero.