There is no material difference between a covenant and a restriction on the use of land. The terminology usually depends on the manner of creation.
A covenant may be created:
- by inclusion in a transfer or
- as a restriction on the use of land by deed of agreement between the parties pursuant to s88 Conveyancing Act 1919.
A covenant must:
- contain at least one clause that restricts the use of the land. A clause is restrictive if it does not involve the covenantor in any expenditure in order to comply with it; and
- indicate the land benefited and burdened. A description that refers to 'the land being transferred' is acceptable.
A transferee's covenant
The transferee covenants with the transferor, places the burden of the covenant on the land being transferred for the benefit of other land held by the transferor. A transferee's covenant must have the consent of any person who has a registered interest in or caveat on the servient land. The certificate of title for the servient land is required.
A transferor's covenant
The transferor covenants with the transferee, places the burden of the covenant on other land held by the transferor for the benefit of the land being transferred. A transferor's covenant must have the consent of any person who has a registered interest in or caveat on the servient land. The certificate of title for the servient land is required.
A plan fee is not payable for an annexed plan relating solely to the covenant.
A covenant noted on the Register has no effect on the registration of dealings. It does not have to be noted in the Encumbrances nor is the consent of the benefiting party required.
- modification or variation of a covenant.
- release or extinguishment of a covenant.
- removal of an obsolete covenant.
See Baalman and Wells, Land Titles Office Practice, Lawbook Co. 2001 [490.100].
Staff processing information
Any requisition raised solely as regards the covenant will be set out in a 28 Day Notice of Intended Registration form 10-0180. This is to provide the opportunity for rectification in order to avoid further costs and/or inconvenience in amending the covenant. If the covenant is not put in order the dealing will be registered but the covenant will not be recorded on the title. The covenant will be filmed with the dealing.