A decision just handed down in the Supreme Court raises questions about the validity of many contemporary restrictive covenants. Since the 1960s when the Registrar of Titles shifted from updating parent titles to cancelling them upon subdivision, computer generated folios have not included the date of transfer of lots affected by covenants, meaning to determine the beneficiaries of the covenant a search of multiple titles is often necessary. In Wegner v Pereira [2026] VSC 593 Justice Finanzio questioned such work meant the land with the benefit of the covenant is easily ascertainable:

130 The method presently adopted by the Registrar of recording the movement out of one title into another following subdivision apparently excludes information like that once contained in parent titles kept on parchment. Information, such as the date of transfers, or the dealing number of the registered instrument appear not to be recorded and cannot be ascertained without further searches which are precluded by the principles laid down in Deguisa and Jeshing.

131 It is apparent that a search of Register to comprehend the title to any lot in the plan of subdivision in this case would not have revealed the order of transfers without a further search of the certificate of title for each of the individual lots. As such, it may not be possible to ascertain the identity of the land benefitted by any covenant within the subdivision, such that all of the covenants may fail for an inability to identify the benefitted land within the documents from which notice of an interest can be permissibly ascertained.

Many covenants fall into the category of restrictions identified by his Honour, suggesting in every case for a modification of a restrictive covenant where multiple searches need to be carried out to ascertain the land with the benefit of the covenant, thought should be given to running a simultaneous declaration that the covenant is invalid for failing to comply with the principles in Deguisa v Lynn (2020) 268 CLR 638 & Jeshing Property Management Pty Ltd v Yang [2023] VSCA 185.