Release or extinguishment of positive covenant

Form 13PRE (PDF 550 KB)

Dealing type - EP

Legislation

s88D(12) Conveyancing Act 1919 (release)

s88E(7) Conveyancing Act 1919 (release)

s89(8) Conveyancing Act 1919 (extinguishment)

Stamp duty - not required

Certificate of Title - required for a release of positive covenant where a prescribed authority is the registered proprietor

Not required for:

  • a release of positive covenant where a prescribed authority is not the registered proprietor or
  • an extinguishment of positive covenant by Order of Court.

NOS form - not required

Standard form of Caveat - does not prevent registration.

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

An Owners Corporation of a Strata Scheme may, pursuant to a resolution, accept a dealing releasing 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, release a positive covenant that burdens community property or the whole of the community parcel, (See s35 Community Land Development Act 1989).

There is no extra fee payable for a plan annexed.

Release or extinguishment of a positive covenant created pursuant to s88D Conveyancing Act 1919

A positive covenant created by s88D Conveyancing Act 1919 may be:

  • released by way of an Order from the prescribed authority entitled to enforce the positive covenant; or
  • extinguished by an Order from the Supreme Court, see s89(8) Conveyancing Act 1919.

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

(C) The registered number of the positive covenant must be stated.

(D) The full name of the applicant must be stated.

Release  the applicant must be the prescribed authority

Extinguishment  the applicant must be the registered proprietor of the burdened land.

(E)

1. Release  the date of the Order from the prescribed authority must be stated. An office copy of the Order must be annexed to the dealing.

3. Extinguishment  the date of the Order from the Supreme Court must be stated. An office copy of the Order must be annexed to the dealing.

Note Any requirement for the written consent of any lessee, mortgagee or chargee against whom the positive covenant is enforceable will be determined by LPI.

(F)

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

Extinguishment  the dealing must be executed by the registered proprietor and be witnessed, or be executed on the registered proprietor's behalf as follows:

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

For further execution requirements for companies, witnesses etc.

Where the applicant is the Owners Corporation of a strata scheme, execution must take the form as set out in Approved Form 23.

See Baalman and Wells, Land Titles Office Practice, Lawbook Co. 2001 [396.340].

Release or extinguishment of a positive covenant created pursuant to s88E Conveyancing Act 1919

A positive covenant created by s88E Conveyancing Act 1919 may be:

  • released by the prescribed authority entitled to enforce the positive covenant; or
  • extinguished by an Order from the Supreme Court, see s89(8) Conveyancing Act 1919.

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

(C) The registered number of the positive covenant must be stated.

(D) The full name of the applicant must be stated.

Release  the applicant must be the prescribed authority;

Extinguishment  the applicant must be the registered proprietor of the burdened land.

(E)

3. Extinguishment  the date of the Order from the Supreme Court must be stated. An office copy of the Order must be annexed to the dealing.

Note  Any requirement for the written consent of any lessee, mortgagee or chargee against whom the positive covenant is enforceable will be determined by LPI.

(F)

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

Extinguishment  the dealing must be executed by the registered proprietor and be witnessed, or be executed on the registered proprietor's behalf as follows:

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

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).  

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.

See execution requirements for companies, witnesses etc. pages

See Baalman And Wells, Land Titles Office Practice, Lawbook Co. 2001 [396.340].

Staff processing information

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

Where doubt exists as to the question of full release or partial release, i.e. a variation, refer to Legal through the Senior Examining Officer.

Registration procedure 

Full release or extinguishment

TRANSACTION    OFF

PRIME CODE    code of positive covenant as shown on the Register

PRIME NO.    number of positive covenant.

Partial release or extinguishment

Proceed with registration as directed by Legal.