Positive covenant for maintenance repair of easement site

Request form  11R (PDF 150 KB)

Dealing type - R

Legislation - s88BA Conveyancing Act 1919

(A) 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.

Pursuant to s88BA Conveyancing Act 1919 a positive covenant may be created by the parties to a registered easement requiring either the proprietor of the dominant or servient tenement to maintain and/or repair the easement site. The terms of the positive covenant are set out in a deed of agreement between the parties.

(A) The reference to title for the servient tenement, i.e. the land burdened by the positive covenant, must be stated. The land burdened by the positive covenant need not be the land burdened by the related easement. Note  The positive covenant is only recorded on the servient tenement title.

(C) Does not apply.

(E) The full name of the applicant must be stated. The applicant may be one of the parties to the deed of agreement.

(F) A short description of the nature of the request and relevant legislation must be stated.

(G) Full details of the request must be stated.

The full names of the parties involved must be stated.

The date of the deed of agreement must be stated. The deed must state:

  • the land to be maintained and/or repaired
  • the land gaining benefit from the positive covenant
  • the land burdened by the positive covenant
  • the particulars of the positive covenant
  • the names of the proprietors of the benefiting and burdened land and
  • the names of any lessee, mortgagee, chargee or covenant chargee of a lease, mortgage or charge affecting the burdened land, or their written consent to the positive covenant must be provided.

(H) If the agreement is embodied in the dealing, the dealing must be executed by all of the parties mentioned in the deed and be witnessed, except where the written consent of a lessee, mortgagee or chargee is provided.

If the agreement is annexed to the dealing, and the agreement is signed by all parties, except where the written consent of a lessee, mortgagee or chargee is provided, the dealing must be executed by the applicant and be witnessed, or be executed on the applicants behalf as follows:

  Attorney and witnessed Solicitor or Barrister Authorised Officer and witnessed Licensed Conveyancer
Applicant1 Tick Tick Tick Tick

1   Where the applicant is the Owners Corporation of a Strata scheme, execution must take the form as set out in Strata Schemes Approved Form 23 (PDF 128 KB).  The following certificates are also required:

  • Strata Schemes Approved Form 14 (PDF 8 KB) where the Owners Corporation benefits from the dealing or
  • Strata Schemes Approved Form 13 (PDF 23 KB) where the Owners Corporation is burdened by the dealing and
  • Strata Schemes Approved Form 10 (PDF 8 KB) where the initial period is not shown as expired on the common property title.

Where the applicant 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 (PDF 20 KB).  A certificate as in Community Title Schemes Approved Form 21 (PDF 20 KB) is also required.

See execution requirements for companies, witnesses etc.

(I) Not to be completed (see NOS form above).

See Baalman And Wells, Land Titles Office Practice, Lawbook Co. 2001 [396.420].

Staff processing information

If in order proceed with registration.

Registration procedure

Folio for the tenement of the easement burdened by the positive covenant:

TRANSACTION    UNDR

PRIME CODE    code of related easement as shown on the Register

PRIME NO.    number of easement

SUB CODE    UA

DETAILS    Positive Covenant.