Modification of Positive Covenant

This page aims to help you complete an electronic Modification of Positive Covenant dealing form. This form records a modification in the terms of a positive covenant pursuant to a Supreme Court Order under section 89(8) Conveyancing Act 1919

A positive covenant created by section 88D or 88E Conveyancing Act 1919 may be modified by a Court Order: see section 89(8) Conveyancing Act 1919. The applicant must be the registered proprietor of the burdened land and the date of the Court Order must be stated. A sealed copy of the order must be uploaded as an attachment to the dealing.

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 89(8) Conveyancing Act 1919.

Stamp Duty – not required.

CoRD Holder Consent – not required.

Notice of Sale – not required.

Standard Form of Caveat – a caveat noted on the Register will not prevent the recording of a Modification of Positive Covenant. 

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 Modification of Positive Covenant dealing form.

Land Title

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

Participant Details

Party Details – Party Name

Select the registered proprietor of the burdened land.

Document

Create Document – Select Other Documents.

Select Modification of Positive Covenant.
 
Applicant

Select the registered proprietor of the burdened land.

Evidence Date

Enter the date of the Court Order.

Positive Covenant Registration Number

Enter the registration number of the positive covenant.

Positive Covenant Description

Enter the positive covenant description. You must include the positive covenant number referred to in the section 88B instrument and the accompanying DP reference, where applicable. Enter N/A where this is not applicable.

Modification of Positive Covenant

Select the following:

  • SECTION 89(8) CONVEYANCING ACT 1919: The applicant, being the registered proprietor of the land, applies to have all necessary recordings made in the Register to give effect to the order of the Supreme Court of New South Wales, a copy of which is annexed, which modifies the positive covenant.

Attachment

Attachment Type – Copy of Order of Court.

Attach a sealed copy of the Court Order.

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.

The evidence that the Subscriber is required to retain to support a Modification of Positive Covenant dealing form may include:

  • A true copy of the duly executed version of the document(s) uploaded as an attachment. 

Other forms of evidence may be acceptable and 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