Variation of Positive Covenant

This page aims to help you complete an electronic Variation of Positive Covenant dealing form. This form records a variation of positive covenant pursuant to section 88D(15) or 88E(7) Conveyancing Act 1919.

An owners corporation of a strata scheme may, pursuant to a special resolution, vary a positive covenant created by the owners corporation that benefits or burdens the common property in a strata scheme, or all of the land in the scheme. See section 34(1) Strata Schemes Development Act 2015.

The association of a community title scheme may, pursuant to a unanimous resolution:

  • execute a dealing varying a positive covenant that benefits the community property or the whole of the community parcel or
  • accept a dealing varying a positive covenant that burdens the community property or the whole of the community parcel. 

See section 35 Community Land Development Act 1989.

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

A positive covenant created by section 88D Conveyancing Act 1919  may be varied by the prescribed authority entitled to enforce the positive covenant. 

The applicant must be the prescribed authority and the details of the variation must be set out in an annexure to the dealing. A true copy of the agreement must be uploaded as an attachment to the dealing.

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

A positive covenant created by section 88E Conveyancing Act 1919  may be varied by an agreement in writing between registered proprietor and the prescribed authority entitled to enforce the positive covenant. 

The applicant must be the prescribed authority or the registered proprietor of the burdened land and the date of the agreement must be stated. A true copy of the agreement must be uploaded as an attachment to the dealing.

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(15) and section 88E(7) 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 Variation 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 Variation 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


Select the registered proprietor or the prescribed authority.

Document

Create Document – Select Other Documents.

Select Variation of Positive Covenant.
 
Applicant

Select the registered proprietor of the burdened land or the prescribed authority.

Evidence Date

Enter the date of the agreement to the variation.

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. 

Variation of Positive Covenant

Select from one of the following:

  • SECTION 88D(15) CONVEYANCING ACT 1919: The applicant, being the prescribed authority entitled to enforce the positive covenant, varies that positive covenant in the manner set out in the annexure and applies to have a recording made in the Register giving effect to the variation.
  • SECTION 88E(7) CONVEYANCING ACT 1919: The applicant, being the registered proprietor of the land, applies to have a recording made in the Register of the agreement varying the positive covenant annexed.
  • SECTION 88E(7) CONVEYANCING ACT 1919: The applicant, being the prescribed authority entitled to the positive covenant, applies to have a recording made in the Register of the agreement varying the positive covenant annexed.

Attachment

Attachment Type – Terms and Conditions

Attach the details of the variation or a true copy of the agreement.

Attachment Type – Approved Forms 

Where the registered proprietor 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 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.

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 Variation 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 Variation 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