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

Restriction on the Use of Land (with Registered Interest Holder Consent)

This page aims to help you complete an electronic Restriction on the Use of Land (with Registered Interest Holder Consent) dealing form. This form is used to create a restriction on the user of land the benefit of which is annexed to other land pursuant to section 88 Conveyancing Act 1919.

This form is used 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 bound by the terms of the restriction. For a restriction where a registered interest does not agree to be bound by this restriction, see Restriction on the Use of Land.

A restriction on the use of land may be created:

  • between private parties owning land pursuant to section 88 Conveyancing Act 1919 or created on or after 1 January 2006 where the registered proprietor of the land benefited and burdened is one and the same person pursuant to section 46A Real Property Act 1900.

An owners corporation of a strata scheme may:

  • pursuant to a special resolution, create a restriction on the use of land that burdens common property or the whole parcel
  • pursuant to a resolution, accept a dealing creating a restriction on the use of land that benefits common property or the whole parcel. See section 34 Strata Schemes Development Act 2015.

A community association may, pursuant to a special resolution, execute a dealing creating a restriction on the use of land that burdens the community property or the whole of the community parcel. See section 30 Community Land Development Act 2021.

A community association may, pursuant to an ordinary resolution, execute a dealing creating a restriction on the use of land that benefits the community property or the whole of a community parcel. See section 30 Community Land Development Act 2021.

NOTE: For a restriction on use created on or after 1 January 2006, the registered proprietor of the dominant and servient tenements may be one and the same person, see section 46A Real Property Act 2006. A Transfer Granting Easement Over Own Land must be used for the creation of a restriction where the dominant tenement and the servient tenement are held by the same registered proprietor.

If this form is used to create a restriction over own land in accordance with section 46A then the dealing must be lodged using as a Dealing with Exception and also be:

  • executed by the mortgagee or chargee of a registered mortgage or charge affecting the benefited and the burdened land and
  • accompanied by the written consent of the lessee of a registered lease affecting the benefited or burdened land, or the consent of a judgment creditor under any writ.

NOTE: Both the registered proprietor and the applicant 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 88 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 Restriction on the Use of Land (with Registered Interest Holder Consent).

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 Restriction on the Use of Land (with Registered Interest Holder Consent) dealing form.

Land Title

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

Participant Details

Party Details – Party Name

Select the registered proprietor of the burdened land.

Document

Create Document – Select Other Documents.

Select Restriction on the Use of Land (with Registered Interest Holder Consent).

Dealing on Title

Select the registered number the mortgagee, lessee or chargee, and covenant chargee of a registered lease, mortgage, charge or covenant charge who agrees to be bound by the restriction.

Registered Proprietor

Select the registered proprietor of the burdened land.

Applicant

The applicant may be the registered proprietor of the benefiting or burdened land.

Evidence Date

Enter the date of the deed of covenant.

Attachment

Attachment Type – Terms and Conditions

A certified copy of the deed of covenant must be attached. The deed must state:

  • the land gaining benefit from the restriction
  • the land burdened by the restriction
  • the full names of the parties to the deed and
  • the particulars of the restriction.

All parties to the deed of covenant must execute the deed and the signatures must be witnessed.

Attachment Type – Mortgagee’s Consent

The consent of the mortgagee who agrees to be bound by the positive covenant must be attached.

Attachment Type – Lessee's Consent

The consent of the lessee who agrees to be bound by the restriction must be attached.

Attachment Type – Supporting Evidence 

The consent of the chargee who agrees to be bound by the positive covenant must be attached. 

Attachment Type – Approved Forms

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

  • strata schemes Approved Form 14 where the owners corporation benefits from the dealing or 
  • 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. 

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

Where the transferor or transferee is the association of a community, precinct or neighbourhood scheme, a certificate in the form of Approved Form 21 (special resolution) or a certificate in the form of Approved Form 40 (ordinary resolution) 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.

The evidence that the Subscriber is required to retain to support a Restriction on the Use of Land (with Registered Interest Holder Consent) 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