Variation or modification of positive covenant

Form 13PVM (PDF 550 KB)

Dealing type - VR 

Legislation

s88D(15) Conveyancing Act 1919 (variation)

s88E(7) Conveyancing Act 1919 (variation)

s89(8) Conveyancing Act 1919 (modification)

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.

An Owners Corporation of a Strata scheme may, pursuant to a special resolution, vary a positive covenant created by the Owners Corporation that benefits or burdens the common property in a Strata scheme, or all of the land in the scheme.  See s34(1) Strata Schemes Development Act 2015.

The association of a community title scheme may, pursuant to a unanimous resolution execute or accept a dealing varying a positive covenant that benefits or burdens the association property or the whole of the land in the scheme. See s.35 Community Land Development Act 1989.

There is no extra fee payable for a plan annexed.

Variation or modification of a positive covenant created pursuant to s88D Conveyancing Act 1919

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

  • varied by the prescribed authority entitled to enforce the positive covenant; or
  • modified 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.

Variation the applicant must be the prescribed authority;

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

(E)

1. Variation (s88D)  the details of the variation must be set out in an annexure to the dealing

3. Modification  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) The written consent of any lessee, mortgagee or chargee against whom the positive covenant is enforceable is required for a variation of the positive covenant.

(G)

Variation  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.

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

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

See execution requirements for companies, witnesses etc. pages

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].

Variation or modification of a positive covenant created pursuant to s88E Conveyancing Act 1919

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

  • varied by an agreement in writing between registered proprietor and the prescribed authority entitled to enforce the restriction; or
  • modified 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.

Variation the applicant must be the prescribed authority or the registered proprietor of the burdened land;

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

(E)

2. Variation (s88E)  the date of the agreement must be stated. A copy of the agreement certified by a solicitor, licensed conveyancer or justice of the peace to be a true copy must be annexed to the dealing.

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

(F) The written consent of any lessee, mortgagee or chargee against whom the positive covenant is enforceable is required for a variation of the positive covenant.

(G) Variation  the dealing must be executed by the applicant and be witnessed, or be executed on the applicant's behalf as follows:

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

 Where an Owners Corporation of a Strata scheme is party to the positive covenant, 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.

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

Where the transferor or transferee 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.

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.

Refer to Legal through the Senior Examining Officer (the question of full release or partial release, ie a variation, must be asked if doubt exists) except for the following.

Refer to SD31

A variation or modification of positive covenant involving:

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

Registration procedure

Proceed with registration as directed.

Modification

TRANSACTION    UNDR

PRIME CODE    code of positive covenant as shown on the Register

PRIME NO.    number of positive covenant

SUB CODE    UA

DETAILS    Modification

Variation

TRANSACTION    UNDR

PRIME CODE    code of positive covenant as shown on the Register

PRIME NO.    number of positive covenant

SUB CODE    UA

DETAILS    Variation