Variation of Restriction on the Use of Land

This page aims to help you complete an electronic Variation of Restriction on the Use of Land dealing form. This form records a variation of restriction.
 
An owners corporation of a strata scheme may, pursuant to a special resolution, vary a restriction on the use of land 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 special resolution, execute a dealing varying a restriction on the use of land that benefits the community property or the whole of the community parcel. 

The association of a community title scheme may, pursuant to an ordinary resolution, accept a dealing varying 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.

Variation of a restriction created pursuant to section 88 Conveyancing Act 1919 

A restriction on the use of land created other than by section 88D or 88E Conveyancing Act 1919  may be varied by setting out the terms of the agreement in the dealing or in a deed of variation. 

The applicant must be a party to the deed of variation and the date of the deed of variation must be stated. A true copy of the deed of variation must be uploaded as an attachment to the dealing. 

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

A restriction on the use of land created by section 88D Conveyancing Act 1919  may be varied by an agreement between the registered proprietor and the prescribed authority entitled to enforce the restriction. 

The applicant must be the prescribed authority, or the registered proprietor of the burdened land and details of the variation must be provided as follows: 

• where the prescribed authority is the registered proprietor of the land, the terms of the variation must be uploaded as an attachment to the dealing, and
• where the prescribed authority is no longer the registered proprietor of the land, a true copy of the agreement made between the prescribed authority and the registered proprietor must be uploaded as an attachment to the dealing.  

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

A restriction on the use of land created by section 88E Conveyancing Act 1919 may be varied by the prescribed authority entitled to enforce the restriction. 

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. 

NOTE: 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, section 88D(15) 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 Variation of Restriction on the Use of Land. 

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 Restriction on the Use of Land 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, the prescribed authority or a party to the deed of variation.

Document

Create Document – Select Other Documents.

Select Variation of Restriction on the Use of Land. 

Applicant

Select the applicant being the registered proprietor, the prescribed authority or a party to the deed of variation. 

Evidence Date

Enter the date of the agreement to the variation. 

Restriction Registration Number

Enter the registration number of the restriction.

Restriction Description

Enter the restriction description. You must include the restriction 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 Restriction on the Use of Land

Select from one of the following:

• SECTION 88 CONVEYANCING ACT 1919: The applicant applies to have a recording made in the Register of a deed of variation/agreement varying the restriction on the use of land, a copy of which is annexed.
• SECTION 88D(15) CONVEYANCING ACT 1919: The restriction on the use of land having been varied in the manner set out in the annexure, the applicant, being the prescribed authority entitled to enforce that restriction, applies to have a recording made in the Register giving effect to that variation.
• SECTION 88D(15) CONVEYANCING ACT 1919: The restriction on the use of land having been varied in the manner set out in the annexure, the applicant, being the registered proprietor of the land, applies to have a recording made in the Register giving effect to that 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 memorandum annexed varying the restriction on the use of land.
• SECTION 88E(7) CONVEYANCING ACT 1919: The applicant, being the prescribed authority, applies to have a recording made in the Register of the memorandum annexed varying the restriction on the use of land.

Attachment

Attachment Type – Terms and Conditions

Attach the relevant instrument varying the restriction on the use of land e.g. deed of variation, agreement, annexure or memorandum. 

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 (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.

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

The written consent of any lessee, mortgagee or chargee against whom the restriction is enforceable is required for a Variation of Restriction on the Use of Land.

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