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 unanimous resolution, execute a dealing creating a positive covenant that burdens community property or the whole of the land in the community parcel. See section 35 Community Land Development Act 1989.

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.

NOTE: Both the registered proprietor and the prescribed authority must be represented in the workspace for this dealing form.

For more information on these requirements see:

Residual Documents

Guide to complete

Legislation – section 88E(3) 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 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.

Select the prescribed authority.

Document

Create Document – Select Other Documents.

Select Positive Covenant.

Registered Proprietor

Select the registered proprietor.

Prescribed Authority

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

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.

Attachment Type – Approved Forms

Where the registered proprietor is the owners corporation of a strata scheme, execution must take the form as set out in strata schemes Approved Form 23. The following certificates are also required:

  • strata schemes Approved Form 13 where the owners corporation is burdened by the dealing, and

  • strata schemes Approved Form 10 where the initial period is not shown as expired on the common property title.

Where the registered proprietor is the association of a community, precinct or neighbourhood scheme, execution must take the form as set out in the community titles schemes Approved Form 18. A certificate as in the community titles schemes Approved Form 21 is also required.
 

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 Positive Covenant dealing form may include:

  • A 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/