ADIS Code - CV
A covenant is a form of agreement that creates an obligation. If the covenant affects land it remains in force regardless of any change of proprietorship.
A restrictive covenant, also known as a negative covenant, creates an obligation to refrain from doing something.
A positive covenant creates an obligation to do something. Only a prescribed authority can create a positive covenant pursuant to s88D or s88E Conveyancing Act 1919. A positive covenant created in favour of a prescribed authority may not have land benefited by the covenant. See Part 6 Conveyancing Act 1919.
Also see the Real Property Act Dealings.
Lodgment requirements
Stamp duty - Required if dated before 1.7.1998. If not marked, Registration insisted upon is prohibited.
Not required if dated on or after 1.7.1998.
Registration copy - Required. If unacceptable, Registration insisted upon is prohibited.
Statement of Title Particulars form - Not required.
NOS form - Not required.
Index Particulars form (completion)
(A) Lodging Party - Must be completed.
(B) Instrument - Covenant
(C) Locality - The situation of the land if affected.
Link Conveyance - For the Old System land burdened and the Old System land benefited by the covenant, if affected1.
Principal Deed - Not required.
(D) Indexing - The party burdened and the party benefited.
(E) Certification - Required.
Document requirements
Date: must be dated with the date of execution. If not dated advise the lodging party. If a date is not furnished, indicate Registration insisted upon and include the reason.
Name: the full names (initials are acceptable) of the party burdened and the party benefited are required. Advise the lodging party of any discrepancies in names.
Operative clause: "... covenants with ...".
Locality: required if land is affected. The situation of the land.
Land Description: required if Old System land is burdened or benefited by the covenant. Determine if the affected land is Old System or other (see IPF). Where Old System land is affected it must be described by reference to:
- a metes and bounds description
- another registered instrument
- a plan attached
- a Government Gazette notice or
- a lot or parcel in a subdivision.
Link Conveyance: required if Old System land is burdened or benefited by the covenant. The last registered conveyance or acknowledgment that evidences ownership prior to Book 4000. Whole or part must be established.
Execution: by the party burdened by the covenant. A power of attorney must be registered if land is affected. The party benefited does not have to sign.
Attestation: required. Must be witnessed by a person of 18 years of age or older who is not a party to the document.
IPF: must be completed.
Staff processing information
The operative words for a covenant are "covenants with". A document containing the operative words:
A covenant to produce must be entered under the Covenant to Produce Frame, ie code "CP".
A document creating an easement and a covenant must be entered under the Easement Frame, ie code "EA".
A covenant affecting land that does not have a Link Conveyance in the form of a Book and No. must be entered under the Covenant Frame, ie code "CV", with a Noting: "Covenant affecting [land description and manner of acquisition]".
1 Where the land burdened is Torrens Title land and the land benefited is Old System land enter the covenant under the General Frame, ie code "G", with a Noting: "Covenant and the land in the Link Conveyance is the land benefited". Enter the Locality and Link Conveyance for the land benefited. Enter the party burdened and the party benefited as Vendors entries. The covenant may also be registered on the Torrens Title for the land burdened under the Real Property Act 1900. The covenant cannot be created under the Real Property Act 1900 where the land burdened is Old System land.
CA Not required
Indexing
Locality: required if land is affected. The situation of the land.
Link Conveyance: required if Old System land is burdened or benefited by the covenant. The last conveyance or acknowledgment prior to Book 4000. Indicate whole "W" or part "P".
Principal Deed: nil.
Noting: where the land burdened and the land benefited is Old System land: "Covenant. Bk ... No. ... is the land burdened. Bk ... No. is the land benefited".
Where Old System land is affected and:
- part of the land, state: "part being [affected land description]"
- the land description relies on an attached plan, state: "see attached plan" (or Noting Code: "PL").
V:
If Old System land is affected: the party burdened, deceased estates or trusts, and any variations thereof.
If Old System land is not affected: the party burdened and the party benefited, deceased estates or trusts, and any variations thereof.
P:
If Old System land is affected: the party benefited, deceased estates or trusts, and any variations thereof. The prescribed authority is not entered where there is no land benefited from a positive covenant.
If Old System land is not affected: nil.