Positive covenants for maintenance and/or repair

A positive covenant may be imposed requiring the maintenance and/or repair of the site of a new or existing easement (or the land subject to the burden of an easement) by either the dominant tenement (land benefited) and/or servient tenement (land burdened) of that easement see s.88BA(1) Conveyancing Act 1919.

Creation

A positive covenant for maintenance or repair may be created:

  • by Section 88B Instrument as:
    • part of the terms of a new easement. (This is recommended where only the servient tenement has the obligation) or
    • a separate Positive Covenant, the terms of which must relate to another easement created in the same instrument. (This is recommended where an obligation is being placed on the dominant tenement, and ensures that a notification relating to the positive covenant will be entered on the benefiting certificate of title). See note below under variation and release or
  • by Transfer and Grant of Easement form 01TG (PDF 592 KB) where the positive covenant must be included in the terms of the easement being created in the instrument or
  • by a Request form 11R (PDF 131 KB) which includes the terms of the positive covenant and makes reference to an existing easement (Torrens Title) or
  • by a Deed lodged in the General Registry of Deeds which includes the terms of the positive covenant and makes reference to an existing easement or land annexed to an existing easement (Old System).

Under s.88BA Conveyancing Act 1919, the covenant is an impediment on title (independent of ownership) and will continue in force until varied or released. This is different to a public positive covenant.

Requirements

The instrument used to create the positive covenant must:

  • specifically refer to the easement and land to which it relates (including title reference)
  • indicate the land burdened and the land or prescribed authority with the benefit and
  • be executed by each person bound by it and by all persons having an interest in the land.

Note  Where appropriate, a notification regarding the dominant tenement is entered on the new certificate of title.

Variation and Release

A positive covenant for maintenance or repair may be wholly or partly released or varied, pursuant to s.88BA(6) Conveyancing Act 1919, by Request form 11R (PDF 131 KB) Torrens title or Deed registered in the General Register of Deeds (Old System). A release and/or variation must be signed by all parties having an interest in the positive covenant. It may also be released or varied by Court Order with registration of a Variation or Modification of Positive Covenant form 13PVM (PDF 539 KB).

Note  There is no provision in the Conveyancing Act for a positive covenant for maintenance and repair to be varied or released in Part 1A of a section 88B instrument. However, where an obligation for maintenance and repair by a positive covenant is included in the terms of an easement, that easement may be varied or released under section 88B.