On 11 October 2021, the Real Property Amendment (Certificates of Title) Act 2021 commenced, which abolished the Certificates of Title (CTs) and the control of the right to deal (CoRD) framework. All existing CTs have been cancelled and CTs will no longer be issued. Existing CTs will not need to be produced, and CoRD holder consent will not be required, for a dealing or plan to be registered. All existing Guidelines subject to this change are currently being reviewed and will be updated to reflect these changes. For further information regarding the abolition of CTs, please see https://www.registrargeneral.nsw.gov.au/property-and-conveyancing/eConveyancing/abolition-of-certificates-of-title

Positive covenant

Form 13PC 

Dealing Type - PC

Legislation - section 88E(3) Conveyancing Act 1919.

Stamp Duty - not required.

NOS Form - not required.

Standard Form of Caveat - does not prevent registration.

Priority Notice Noted on the Register - see Priority Notice page.

NOTE: This dealing type may be lodged as a Dealing with Exception provided it is accompanied by a completed Lodgment Rules Exception form. In all other instances, the electronic dealing must be used.

Section 88E Conveyancing Act 1919 allows a prescribed authority to create a public positive covenant (as defined in section 87A Conveyancing Act 1919) affecting land that is not vested in the prescribed authority. A public positive covenant can require the registered proprietor to perform certain positive obligations, such as to repair or insure a building etc.

There is no extra fee payable for a plan annexed.

Also see pages:

(A) The reference to title for the land affected by the public positive covenant must be stated.

(C) The full name of the registered proprietor must be stated and be identical to the name as shown on the Torrens Title Register.

(D) The type, number and full name of the lessee, mortgagee or chargee of a registered lease, mortgage, charge or covenant charge who agrees to be bound by the public positive covenant must be stated.

NOTE: It is not essential that the holders of registered interests agree to be bound by this public positive covenant.

(E) The full name of the prescribed authority must be stated.

The prescribed authorities under section 88E(1)Conveyancing Act 1919 are:

  • the Crown (section 88E(1)(a))

  • a public or local authority constituted by an Act (section 88E(1)(b)) or

  • a corporation prescribed for the purposes of section 88E (section 88E(1)). The following corporations are prescribed by clause 28 Conveyancing (General) Regulation 2018):

    • Australian Gas Networks (NSW) Pty Ltd (ACN 083 199 839)

    • Australian Postal Corporation

    • an energy services corporation within the meaning of the Energy Services Corporations Act 1995

    • the owner of a transacted distribution system or transacted transmission system under the Electricity Network Assets (Authorised Transactions) Act 2015

    • Hunter Water Corporation

    • an irrigation corporation within the meaning of the Water Management Act 2000

    • Water NSW

    • Sydney Water Corporation

    • The Uniting Church in Australia Property Trust (NSW)

    • Transport Asset Holding Entity of New South Wales and

    • Landcom.

(F) The annexure must state:

  • the land burdened by the public positive covenant and

  • the particulars of the public positive covenant. A public positive covenant must require the carrying out of a particular obligation by the registered proprietor, e.g. to repair or insure a building etc. (see section 87A definition of ‘public positive covenant’).

(G) The dealing must be executed by an authorised officer of the prescribed authority (the name of the officer and the nature of the authority must be stated) and be witnessed.

The dealing must be executed by the registered proprietor and be witnessed, or it may be executed on the registered proprietors behalf as follows:

  Attorney and witnessed Solicitor or Barrister Authorised Officer and witnessed Licensed Conveyancer
Registered Proprietor Tick Cross Tick Cross

Where the registered proprietor is the Owners Corporation of a Strata scheme, execution must take the form as set out in Strata Schemes Approved Form 23.  The following certificates are also required:

Where the prescribed authority or registered proprietor is the Association of a Community, Precinct or Neighbourhood scheme, execution must take the form as set out in Community Title Schemes Approved Form 18.  A certificate as in Community Title Schemes Approved Form 21 (special resolution) or a certificate as in Community Title Schemes in Approved Form 40 is also required.

(H) The registered number of the lease etc must be stated.

The dealing must be executed by the lessee/mortgagee/chargee stated at Note (D) and be witnessed, or it may be executed on their behalf as follows:

  Attorney and witnessed Solicitor or Barrister Authorised Officer and witnessed Licensed Conveyancer
Lessee etc Tick Cross Tick Cross

See execution requirements for companies, witnesses etc.

All NSW legislation can be accessed at www.legislation.nsw.gov.au/

Staff processing information


The dealing does not require referral to Folio Management and may be registered if in order.

If in order proceed with registration except for the following.

Refer to Indigenous Title

A positive covenant involving:

  • an Aboriginal Association or corporation
  • the NSW/Local Aboriginal Land Council
 

Refer to Crown

A positive covenant involving:​

  • Crown land tenure Perpetual Lease.

Registration procedure


PRIME CODE    PC.
 

Published Date: October 2024