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

Release of Positive Covenant

This page aims to help you complete an electronic Release of Positive Covenant dealing form. This form records the release of a positive covenant by a prescribed authority pursuant to section 88D(12) or 88E(7) Conveyancing Act 1919.

Release of a positive covenant created pursuant to section 88D Conveyancing Act 1919 

A positive covenant created by section 88D Conveyancing Act 1919 may be released by way of an order from the prescribed authority entitled to enforce the positive covenant.

The applicant must be the prescribed authority and the date of the order from the prescribed authority must be stated. A true copy of the order must be uploaded as an attachment to the dealing.

Release of a positive covenant created pursuant to section 88E Conveyancing Act 1919 

A positive covenant created by section 88E Conveyancing Act 1919 may be released by the prescribed authority entitled to enforce the positive covenant. The applicant must be the prescribed authority.

NOTE: The applicant, being 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 88D(12) and section 88E(7) 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 Release 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 Release 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

Enter the prescribed authority.

Document

Create Document – Select Other Documents.

Select Release of Positive Covenant. 

Applicant

Select the prescribed authority.

Evidence Date

Enter the date of order from the prescribed authority, memorandum of release or deed of release.

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.
 
Release of Positive Covenant

Select from one of the following:

  • SECTION 88D(12) CONVEYANCING ACT 1919: The applicant, being the prescribed authority entitled to enforce the positive covenant, applies to have a recording made in the Register of the order annexed releasing that positive covenant.
  • SECTION 88E(7) CONVEYANCING ACT 1919: The applicant, being the prescribed authority entitled to enforce the positive covenant, releases that positive covenant and applies to have a recording made in the Register giving effect to the release.

Attachment

Attachment Type – Terms and Conditions

Attach a true copy of the order from the prescribed authority, memorandum of release or deed of release.  

Attachment Type – Mortgagee’s Consent/Lessee’s Consent/Supporting Evidence 

The written consent of any lessee, mortgagee or chargee against whom the positive covenant is enforceable is required for a Release of Positive Covenant.   

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 Release 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