Restrictions on use of land
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 restriction on the use of land may be:
- created between private parties by means of a deed of covenant pursuant to s88 Conveyancing Act 1919
- created between private parties by means of a s88B Conveyancing Act 1919 instrument lodged with a plan
- created where the dominant tenement and the servient tenement are Real Property Act land and are held by the same registered proprietor, see s46A Real Property Act 1900. A Transfer granting easement etc over own land form 01TO may be used where the restriction affects all of the land in the servient tenement title or comprises a site with boundaries parallel or perpendicular to the title boundaries. A full plan of survey and s88B instrument must be lodged in all other instances
- imposed by a prescribed authority on its own Order affecting:
Such an Order must identify the land affected by the restriction, specify the terms of the restriction, and specify the prescribed authority imposing the restriction.
- created by the Association of a Community Title scheme pursuant to a unanimous resolution. The restriction on the use of land must burden lot 1 in a Community Title scheme, or all of the land in the scheme.
- created by the Owners Corporation of a Strata scheme, pursuant to a unanimous resolution. The restriction on the use of land must burden the common property of a Strata scheme, or all of the land in the scheme. For a Strata scheme, see s26(1) Strata Schemes (Freehold Development) Act 1973.
A plan fee is not payable for an annexed plan relating solely to the restriction on the use of land.
A restriction on the use of land 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 restriction on the use of land created pursuant to s88, s88D or s88EConveyancing Act 1919
- release or extinguishment of a restriction on the use of land created pursuant to s88, s88D or s88E Conveyancing Act 1919
For a restriction on the use of land:
See Baalman And Wells, Land Titles Office Practice, Lawbook Co. 2001 [494.300].