On 11 October 2021, the Real Property Amendment (Certificates of Title) Act 2021 commenced, which abolished the Certificates of Title (CTs) and the control of the right to deal (CoRD) framework. All existing CTs have been cancelled and CTs will no longer be issued. Existing CTs will not need to be produced, and CoRD holder consent will not be required, for a dealing or plan to be registered. All existing Guidelines subject to this change are currently being reviewed and will be updated to reflect these changes. For further information regarding the abolition of CTs, please see https://www.registrargeneral.nsw.gov.au/property-and-conveyancing/eConveyancing/abolition-of-certificates-of-title

Positive covenants for maintenance and/or repair

A positive covenant may be imposed requiring the maintenance and/or repair of the site of a new or existing easement (and/or other land that is subject to the burden of an easement) by either the dominant tenement (land benefited) and/or servient tenement (land burdened) of that easement: see section 88BA(1) Conveyancing Act 1919.

Creation

A positive covenant for maintenance or repair may be created:

  • by section 88B instrument as:
    • part of the terms of a new easement. (This is recommended where only the servient tenement has the obligation) or
    • a separate positive covenant, the terms of which must relate to another easement created in the same instrument. (This is recommended where an obligation is being placed on the dominant tenement and ensures that a notification relating to the positive covenant will be entered on the benefiting folio of the Register).
  • by Transfer and Grant of Easement form 01TG where the positive covenant must be included in the terms of the easement being created in the instrument or
  • by a Request form 11R which includes the terms of the positive covenant and makes reference to an existing easement (Torrens Title) or
  • by a Deed lodged in the General Register of Deeds which includes the terms of the positive covenant and refers to an existing easement or land annexed to an existing easement (Old System).

Under section 88BA Conveyancing Act 1919, the positive covenant is an impediment on title (independent of ownership) and will continue in force until it is released.

Requirements

The instrument used to create the positive covenant must:

  • specifically refer to the easement and land to which it relates (including title reference)
  • indicate the land burdened and the land or prescribed authority with the benefit and
  • be executed by each person bound by it and by all persons having an interest in the land.

NOTE:  Where appropriate, a notification regarding the dominant tenement is entered on the new folio of the Register.

Variation and Release

A positive covenant for maintenance or repair may be wholly or partly released or varied, pursuant to section 88BA(6) Conveyancing Act 1919, by Request form 11R if it relates to Torrens Title, or by registering a Deed in the General Register of Deeds if it relates to Old System. A release and/or variation must be signed by all parties having an interest in the positive covenant. A positive covenant for maintenance and repair may also be extinguished or modified by Court Order. For Torrens Title land a Release or Extinguish a Positive Covenant form 13PRE (where extinguished) or a Variation or Modification of Positive Covenant form 13PVM (where modified) by the court pursuant to section 89(8) Conveyancing Act 1919 must be used.

NOTE:  There is no provision in the Conveyancing Act 1919 for a positive covenant for maintenance and repair to be varied or released in Part 1A of a section 88B instrument. However, where an obligation for maintenance and repair by a positive covenant is included in the terms of an easement, that easement may be varied or released under section 88B.

All NSW legislation can be accessed at www.legislation.nsw.gov.au/

 

Publication Date: September 2024