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


Covenant Charge

This page aims to help you complete an electronic Covenant Charge dealing form. This form is used for a charge imposed on land by a prescribed authority for a failure to comply with a public positive covenant.

Where a registered proprietor has failed to comply with an obligation imposed by a positive covenant under section 88 or 88E Conveyancing Act 1919, the prescribed authority may itself carry out the obligation and recover the cost by obtaining a judgment from a court. The prescribed authority may then lodge an application to register a covenant charge over the land (see 88F(4)(a) Conveyancing Act 1919). The covenant charge gives the prescribed authority the powers of a mortgagee, e.g. the power to sell the subject land if necessary.

NOTE: A covenant charge cannot be recorded on the common property folio of a strata scheme. The amount owing is apportioned among the lots in the scheme, and covenant charges are recorded on the relevant folios of the Register, see section 32(4) Strata Schemes Development) Act 2015.

NOTE: The prescribed authority must be represented in the workspace for this dealing form. 

Subscriber requirements

Before lodging this document electronically via an Electronic Lodgment Network, a Subscriber must:

  1. verify their client’s identity
  2. establish their client’s right to deal with the land
  3. have a properly completed and executed Client Authorisation form and
  4. retain evidence that supports the dealing (see Supporting Evidence below).

The Subscriber must also certify that they have taken reasonable steps to ensure that the instrument is correct and compliant with relevant law and any Prescribed Requirement.

For more information on these requirements see:

Residual Documents

Guide to complete

Legislation – section 88F(4)(a) Conveyancing Act 1919.

Stamp Duty – not required.

Notice of Sale – not required.

Standard Form of Caveat – a caveat noted on the Register will prevent the recording of a Covenant Charge.

Priority Notice Noted on the Register - see Priority Notice page for more information.

The following headings refer to the data fields which must be completed in order to lodge an electronic Covenant Charge dealing form.
 
Land Title

Enter the land title reference(s) for the land burdened by the positive covenant.

Participant Details

Party Details – Party Name

Enter the prescribed authority.

Document
  
Create Document – Select Other Documents.
    
Select Covenant Charge.

Registered Proprietor

The full name of the registered proprietor must be stated and be identical to the name of the registered proprietor as shown on the Register and in the case of a corporation must include its ACN/ARBN.
 
Prescribed Authority

Select the prescribed authority.

Evidence Date

Enter date on which the judgment was obtained, this must be the same as the judgment date.

Dealing Number

Enter the dealing number of the Positive Covenant.

Attachments

Attachment Type – Copy of Order of Court

A sealed copy of the judgment must be attached.

Attachment Type – Statutory Declaration

A statutory declaration  must be made by an authorised officer of the prescribed authority and must confirm that the name of the defendant is identical to the name of the registered proprietor. The full name of the authorised officer and the nature of the authority must be stated. The statutory declaration must be signed by the authorised officer and must be witnessed by a prescribed functionary. Where the declaration has been made outside NSW reference to the Oaths Act 1900 must be deleted, the relevant Act must be stated.

General statutory declaration requirements can be found here.

Supporting evidence

In addition to evidence supporting the steps taken by the Subscriber to verify the identity of their Client and establish their Client’s right to deal, the Subscriber may be required to retain other evidence to support the dealing.

It is a matter for the Subscriber to be satisfied that they have met the requirements for the dealing. Please refer to the ARNECC Guidance Note 5 for assistance on retaining evidence to support conveyancing transactions in accordance with the NSW Participation Rules.

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