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 11R (PDF 100 KB)
Dealing Type - R
Legislation – sections 32(6) and 81J 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 81J Real Property Act 1900, allows a restrictive covenant or restriction on the use of land (created other than by section 88D or section 88E Conveyancing Act 1919) to be extinguished where:
(a) the restrictive covenant is expressed to be limited in operation, and the time of its operation has expired, or
(b) the separate parcels of land that were respectively burdened and benefited by the restrictive covenant have been
consolidated into a single parcel, or
(c) the restrictive covenant is personal to the covenantee or that the covenantee owned no neighbouring land in connection with which the benefits of the covenant can be enjoyed, or
(d) there is no express annexation of the benefit of the covenant to ascertainable land and the relevant covenant was created before 1 July 1920, or
(e) the restrictive covenant has no practical value or no practical application.
An application for extinguishment under s 81J may be made by the registered proprietor of the servient tenement.
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 a notice in relation to the application has been given in accordance with the service of notice requirements then, to be effective, the caveat must be lodged before the end of the period specified in the notice.
(B) The reference to title for the land burdened by the covenant must be stated.
(C) The registered number of the restrictive covenant affected by the request must be stated. The reference to title for the land affected by the request must be stated.
(E) The full name of the applicant must be stated. The applicant must be the registered proprietor of the burdened land.
(F) A short description of the nature of the request must be stated, e.g. 'Extinguishment of restrictive covenant pursuant to section 81J Real Property Act 1900.'
(G) Full details of the extinguishment of restrictive covenant must be stated or included in an annexure together with any evidence necessary to establish the facts upon which the application is based. The annexure itself must be identified as such. Each page must be numbered. The first and last pages and any alterations or additions must be signed by all parties.
For an application under section 81J 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 determine 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 relied on to establish a provision within section 81J has been met e.g. any time limit contained in the covenant has expired.
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the land benefited and burdened by the covenant has been consolidated into a single parcel
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the covenant does not affect the land (e.g. the covenant is personal to the covenantee)
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there is no specific land benefiting from the covenant
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the land benefiting from the covenant cannot be identified and the covenant was created before 1 July 1920 or
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the covenant has no practical value or application
NOTE: for the avoidance of doubt, it is not sufficient to provide an application with the statement that “the covenant has no practical value or application” stated in marginal note (G) only without a statutory declaration.
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.
(H) The dealing must be executed by the applicant and be witnessed, or be executed on the applicant'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.
(I) Not to be completed (see NOS form above).
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