NOTE: All statutory declarations and evidence that are lodged in support of land dealings will be treated as publicly accessible and will be disclosed to persons upon request.
Form 13RCE
Dealing Type - EO
Legislation - section 81A Real Property Act 1900.
Stamp Duty - not required.
NOS Form - not required.
Standard Form of Caveat - prevents registration where Item 6 in Schedule 2 of the caveat has been selected. However, NSW LRS will always consider the interest claimed in a caveat in accordance with section 74H(1) Real Property Act when determining whether the caveat will prevent the extinguishment of an obsolete restrictive covenant.
Priority Notice Noted on the Register - see Priority Notice page.
NOTE: This dealing type must be lodged as a Dealing with Exception and accompanied by a completed Lodgment Rules Exception form.
Section 81A Real Property Act 1900 allows the registered proprietor of the servient tenement to apply to extinguish a restrictive covenant involving building materials, fencing and/or the value of structures that has been in effect for 12 years or more.
See section 81 Real Property Act 1900 for definitions of ‘building materials covenant’, ‘fencing covenant’ and ‘value of structures covenant’.
Building materials covenants may sometimes be expressed in the following manner: “a building must not be erected on lot 1 unless made of stone and the roof of that building must not be of any material except tile.”
Fencing covenants may sometimes be expressed in the following manner: “a fence must not be erected on lot 1 without the consent of John Smith but consent will not be required if the fence is erected at the cost of the owner of lot 1 and be constructed of wood.”
Value of structures covenants may sometimes be expressed in the following manner: “the cost of any building constructed on lot 1 must not be less than £200 pounds.”
Please note that the above examples are not exhaustive and the covenants may be expressed differently. These examples have been provided to give guidance only.
When the application for extinguishment is deemed to be in registrable form, notices are prepared by NSW LRS' Legal Division and sent to all parties with an interest in the covenant, e.g. the proprietor of the dominant tenement pursuant to sections 81D – 81G Real Property Act 1900. Where considered appropriate, notice may be given to some or all of the parties by way of advertisement published in a newspaper circulating within NSW (section 81G Real Property Act 1900). Alternatively, where considered appropriate, NSW LRS may direct the applicant, in the manner and form instructed, to attend to the service of notices (section 81H Real Property Act 1900). In all cases, the notice period will be for at least 1 month. An interested party may lodge a caveat to prevent registration of the extinguishment.
NOTE: A caveat may be lodged whether or not the restrictive covenant is already the subject of an application for extinguishment under Part 8A Real Property Act 1900. However, if such an application has been made and notice has been served in accordance with the service of notice requirements, to be effective, the caveat must be lodged before the end of the period specified in the notice.
NOTE: A Request for Extinguishment of obsolete restrictive covenant pursuant to section 81J Real Property Act 1900 should be lodged instead where the restrictive covenant is extinguished pursuant to section 81J Real Property Act 1900.
(A) The reference to title for the land burdened by the covenant must be stated.
(C) The full name of the applicant must be stated. The applicant must be the registered proprietor of the burdened land.
(D) The registered number of the dealing or deposited plan creating the covenant must be stated. The clause number containing the covenant must be stated.
The inappropriate terms must be deleted and verified. The covenant to be extinguished must be adequately described.
(E) The type and details of documents lodged as evidence must be stated. The clearly numbered evidence must be annexed to the dealing.
For an application under section 81A Real Property Act 1900 the evidence must include:
NOTE: depending on the number of lots benefitted, applicants may wish to retain the services of a legal searcher (by contacting an information broker) to assist in determining the current lots.
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the addresses of the land benefited and burdened by the covenant;
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the full names and addresses of:
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a statutory declaration stating in detail the facts and circumstances under which the covenant has lost any practical value after 12 years of its operation.
NOTE: for the avoidance of doubt, it is not sufficient to provide a statutory declaration stating “the covenant has lost any practical value after 12 years” only, without any explanation as to why the covenant has lost practical value.
Further evidence may be required by NSW LRS.
NOTE: If assistance is required in preparing the application, please contact NSW LRS via the contact us page. However, please do not send a copy of your application for review as NSW LRS does not currently offer preliminary examination of dealings. Instead, please prepare specific queries so that NSW LRS can provide appropriate directed guidance.
(F) The dealing must be executed by the registered proprietor and be witnessed, or be executed on the registered proprietor's behalf as follows:
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Attorney and witnessed |
Solicitor or Barrister |
Authorised Officer and witnessed |
Licensed Conveyancer |
| Registered Proprietor |
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See execution requirements for companies, witnesses etc.
All NSW legislation can be accessed at www.legislation.nsw.gov.au/
Staff processing information
Refer to Legal through the Senior Dealing Examiner.
All evidence lodged must be filmed with the minute papers, and the minute papers retained permanently.
Registration procedure
Proceed with registration as directed.
TRANSACTION OFF
PRIME CODE code of covenant as shown on the Register
PRIME NO. number of covenant
Published Date: October 2024