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

Public positive covenants

A public positive covenant is created under either section 88D or section 88E Conveyancing Act 1919 and imposes obligations on the owner of the land burdened (the servient tenement), in favour of a prescribed authority. These obligations include:

  • carrying out specified development on or with respect to the land,
  • the provision of services on or to the land or other land in its vicinity or
  • the maintenance, repair and/or insurance of any structure or work on the land.

It may also impose any term or condition with respect to the performance (or failure to perform) of any such obligation.

Section 88D provides that a prescribed authority may, by an order, impose a public positive covenant on any prescribed land vested in it. Reference to the order must be specifically referred to in the terms of the covenant.

Section 88E provides that a prescribed authority may impose a public positive covenant on any land not vested in the authority, whether or not the public positive covenant is annexed to other land.

A prescribed authority may be:

  • the Crown or
  • a public or local authority constituted by an Act or
  • a corporation prescribed for the purpose of sections 88D or 88E Conveyancing Act 1919. See clauses 27 and 28 Conveyancing (General) Regulation 2018.

Examples of public positive covenants include:

  • to construct all buildings only within a specific site shown on the face of the plan
  • to construct and maintain a storm water retention basin system
  • to maintain a building and its foundations, to ensure the safe working of a railway passing beneath it and
  • to erect a habitable dwelling upon the land within a certain period of time.

Creation

A public positive covenant may be created by:

  • section 88B instrument as a separate positive covenant
  • lodgment of a Positive Covenant form 13PC, used for public positive covenants created under section 88E(3) Conveyancing Act 1919
  • lodgment of a Positive Covenant Affecting Land Vested in a Prescribed Authority form 13PVP used for public positive covenants created under section 88D(3) Conveyancing Act 1919 or
  • registration of an order (section 88D) or a deed (section 88E) in the General Register of Deeds, where the land affected is not under the provisions of the Real Property Act 1900.

Requirements

The instrument creating the public positive covenant must:

  • specify the prescribed authority in which the land is vested (section 88D), or and the prescribed authority that is imposing the public positive covenant (section 88E). The covenant is enforceable whether or not the benefit is annexed to other land
  • clearly set out the terms and conditions of the positive covenant and
  • identify title references for the land affected and benefited (where applicable).

Only a prescribed authority may hold the dominant right (in the same manner as an easement in gross). No notification regarding the dominant tenement is entered on the folio of the Register.  

NOTE:  A section 88B instrument cannot be used to create a public positive covenant over an existing easement.

Powers of the prescribed authority

The prescribed authority having the benefit of the covenant has certain powers of entry and is able to carry out the obligations imposed by the covenant and may recover expenses if the servient owner fails to meet those obligations see section 88F(2) Conveyancing Act 1919.

Variation and release

A release of public positive covenant must be executed by the relevant prescribed authority entitled to enforce the public positive covenant see sections 88D(12) and 88E(7) Conveyancing Act 1919. For Torrens Title land a Release or Extinguish a Positive Covenant form 13PRE must be used.

A variation of public positive covenant must be executed by the relevant prescribed authority entitled to enforce the public positive covenant and must bear written consent of each person against whom the covenant is enforceable see sections 88D(13) and 88E(7)Conveyancing Act 1919. For Torrens Title land a Variation or Modification of a Positive Covenant form 13PVM must be used.

A public positive covenant 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 Variation or Modification of Positive Covenant form 13PVM (where modified) by the court pursuant to section 89(8) Conveyancing Act 1919 must be used.

A deed or Court Order registered in the General Register of Deeds is used in all cases for Old System land.

NOTE:  There is no provision in the Conveyancing Act 1919 for a public positive covenant to be varied or released in a section 88B instrument.

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

 

Publication Date: September 2024