Transfer Including Covenant

This page aims to help you complete an electronic Transfer Including Covenant dealing form. This form is used to transfer Torrens Title land and simultaneously create a covenant affecting the land transferred or other land of the transferor.

This form will create one of the following:

• a transferee's covenant (i.e. the transferee covenants with the transferor) places the burden of the covenant on the land being transferred for the benefit of land held by the transferor, or another party
• a transferor's covenant (i.e. the transferor covenants with the transferee) places the burden of the covenant on other land held by the transferor for the benefit of the land being transferred.

Transferee's covenant benefiting a third party

A transferee's covenant can benefit the land held by a party other than the transferor, e.g. X transfers lot 2 to Y and Y creates a covenant benefiting lot 3 owned by Z. The full name of the registered proprietor of the land benefited must be stated in the attachment. The Schedule to this Transfer Including Covenant must be signed by the registered proprietor of the land benefited and the signature must be witnessed.

NOTE: Where a writ is noted on title, this dealing form must be lodged as a Dealing with Exception, unless the judgment creditor consents to the Transfer Including Covenant or the writ is removed.

NOTE: Both the transferor and transferee 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

Stamp Duty – required.

Notice of Sale – required. There is no need to separately create a Notice of Sale form. The Notice of Sale form is automatically produced in the workspace and sent to NSW LRS when the instrument is lodged.

Standard Form of Caveat – a caveat noted on land being transferred will prevent the recording of a Transfer Including Covenant and prevents recording of the covenant where the caveat is noted on the burdened title.

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 Transfer Including Covenant dealing form.

Land Title

Enter the land title reference of the land being transferred.

Participant Details

Party Details – Party Name

Select the transferor, being the registered proprietor.

Enter the transferee.

Document

Create Document – Select Other Documents.

Select Transfer Including Covenant.

Transferor

Select the transferor.

Transferee

Select the transferee.

Tenancy of the Transferee

Enter the tenancy/shares of the transferee.

Consideration

Consideration Type

Select one of the following consideration types:

• With monetary consideration - where a transfer involves payment of monies.
• Without monetary consideration and as regards a deed of partition - where a transfer does not involve payment of monies and satisfies the conditions set out in a deed of partition.
• Without monetary consideration and as regards a deed of assignment - where a transfer does not involve payment of monies and satisfies the conditions set out in a deed of assignment.
• Without monetary consideration and as regards a court order - where a transfer does not involve payment of monies and satisfies the conditions set out in a Court Order.
• Without monetary consideration and as regards an intergenerational assignment - where a transfer does not involve payment of monies and satisfies the conditions of an intergenerational assignment.
• Without monetary consideration and a change in manner of holding - where a transfer does not involve payment of monies and alters the names, tenancy and/or shares of the registered proprietors.

Gross Consideration Amount

Enter the consideration amount where the transfer is with monetary consideration.

Consideration Details

Enter the consideration details where the transfer is without monetary consideration.

Date of the Covenant

Enter the date of the covenant.

Land Benefited by the Covenant

Enter the reference to title for the land benefited by the covenant.

Land Burdened by the Covenant

Enter the reference to title for the land burdened by the covenant.

Nature of the Covenant

Select from one the following:

• The transferee covenants with the transferor.
• The transferor covenants with the transferee.

Attachment

Attachment Type – Terms and Conditions

Complete and attach Schedule for Transfer Including Covenant (Form SCHD-01TCV).
 
The attachment must include the parties to the covenant, the date of the covenant, the land benefited and burdened by the covenant and the full terms of the covenant. It is acceptable to refer to a Memorandum containing the terms of the covenant.

The covenant must contain at least one clause that restricts the use of the land. A clause is restrictive if it does not involve the covenantor in any expenditure in order to comply with it.

NOTE: All parties to the covenant must sign the Schedule and their signatures must be witnessed. A solicitor, barrister or licensed conveyancer cannot sign the Schedule on behalf of a party burdened by the covenant.

Attach a plan if required.

NOTE: There is no plan fee payable for a plan attached for description/definition purposes as regards the covenant.

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

Attach the consent of the caveator, mortgagee, lessee or chargee if required.

Attachment Type – Supporting Evidence

Where the transferor or transferee is the owners corporation of a strata scheme, the following certificates are 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.

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 is required. Execution of the certificate must take the form as set out in community title schemes Approved Form 18.

If the covenant being created benefits association property or the whole of a community parcel then an ordinary resolution and a certificate as in Community Title Schemes in Approved Form 40 is required.
 
Where there is a writ recorded on the title, and the consent of the judgment creditor for this Transfer has been obtained, the consent is required to be attached.

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