Positive covenant

Form 13PC (PDF 550 KB)

Dealing type - PC

Legislation - s88E(3) Conveyancing Act 1919

Stamp duty - not required

Certificate of Title - 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 s88E Conveyancing Act 1919 a prescribed authority may create a positive covenant on land that is not vested in the authority.

 An Owners Corporation of a Strata Scheme may pursuant to a special resolution, create a positive covenant that burdens common property or the whole parcel.

(See s34 Strata Schemes Development Act 2015)

The Association of a Community Title Scheme may, pursuant to a unanimous resolution, execute a dealing creating a positive covenant that burdens community property or the whole of the land in the community parcel. (See s35 Community Land Development Act 1989)

There is no extra fee payable for a plan annexed.

Also see pages:

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

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

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

The prescribed authorities under s88E(1) Conveyancing Act 1919 are:

  • a statutory authority, i.e. the Crown or a public or local authority constituted by an Act
  • Australian Postal Corporation
  • Coleambally Irrigation Corporation
  • Hunter Water Corporation Limited
  • Jemalong Wyldes Plains Irrigation Limited
  • Lower Murray Irrigation Areas Limited
  • Murray Irrigation Limited
  • Murrumbidgee Irrigation Corporation
  • Rail Infrastructure Corporation
  • Sydney Water Corporation Limited; and
  • The Uniting Church in Australia Property Trust (NSW).

(F) The annexure must state:

  • the land burdened by the positive covenant and
  • the particulars of the positive covenant. A 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 Baalman And Wells, Land Titles Office Practice, Lawbook Co. 2001 [396.200].

(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 (PDF 128 KB).  The following certificates are also required:

  • Strata Schemes Approved Form 13 (PDF 23 KB) 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 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 (PDF 20 KB).  A certificate as in Community Title Schemes Approved Form 21 (PDF 20 KB) 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.

See Baalman And Wells, Land Titles Office Practice, Lawbook Co. 2001 [396.260].

Staff processing information

The dealing does not require referral to SM99 and may be registered if in order.

If in order proceed with registration except for the following.

Refer to SD31

A positive covenant involving:

  • an Aboriginal Association or corporation
  • the NSW/Local Aboriginal Land Council
  • a Crown land tenure Perpetual Lease.

Registration procedure

PRIME CODE    PC.