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 Covenant

This page aims to help you complete an electronic Positive Covenant dealing form. Section 88E Conveyancing Act 1919 allows a prescribed authority to create a public positive covenant (as defined in section 87A Conveyancing Act 1919) affecting land that is not vested in the prescribed authority. A positive covenant can require the registered proprietor to perform certain positive obligations, such as to repair or insure a building, etc.

Where a holder of a registered interest on title (e.g. lessee, mortgagee or chargee of a registered lease, mortgage, charge or covenant charge) agrees to be bound by the terms of the public positive covenant, see Positive Covenant (with Registered Interest Holder Consent).

The prescribed authorities under section 88E(1) Conveyancing Act 1919 are:

  • a statutory authority, i.e. the Crown or a public or local authority constituted by an Act
  • Australian Gas Networks (NSW) Pty Ltd (ACN 083 199 839)
  • Australian Postal Corporation
  • an energy services corporation within the meaning of the Energy Services Corporations Act 1995
  • the owner of a transacted distribution system or transacted transmission system under the Electricity Network Assets (Authorised Transactions) Act 2015
  • Greening Australia (Capital Region) (ACN 110 484 181)
  • Hunter Water Corporation
  • an irrigation corporation within the meaning of the Water Management Act 2000
  • Water NSW
  • Sydney Water Corporation and
  • The Uniting Church in Australia Property Trust (NSW).

See clause 28 Conveyancing (General) Regulation 2018.

An owners corporation of a strata scheme may, by special resolution, execute a dealing creating or varying a positive covenant that burdens common property or the whole parcel. See section 34 Strata Schemes Development Act 2015.

A community association may, by special resolution, execute a dealing creating a positive covenant that burdens community property or the whole of the land in the community parcel. See section 30 Community Land Development Act 2021.

NOTE: Both the registered proprietor and 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 88E(3) Conveyancing Act 1919.

Stamp Duty – not required.

Notice of Sale – not required.

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

Enter the prescribed authority. The prescribed authority is required to be represented as a party to the dealing and must be invited into the workspace. 

Document

Create Document – Select Other Documents.

Select Positive Covenant.

Registered Proprietor

Select the registered proprietor.

Prescribed Authority

Select the prescribed authority. 

Attachment

Attachment Type – Terms and Conditions

The attached terms and conditions of the positive covenant must state:

  • the land burdened by the positive covenant and
  • the particulars of the positive covenant. A positive covenant must require the carrying out of a particular obligation by the registered proprietor, e.g. to repair or insure a building etc.

Attachment Type – Approved Forms

Where the registered proprietor is the owners corporation of a strata scheme, the following certificates are required:

Execution of the certificates must take the form as set out in strata schemes Approved Form 23.

Where the prescribed authority or registered proprietor is the association of a community, precinct or neighbourhood scheme, a certificate in the form of Approved Form 21 is required. Execution of the certificate must take the form as set out in community title schemes Approved Form 18 .
 

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