Affecting interests and section 88B instruments
Affecting interests include:
- Profits à prendre
- Restrictions on the use of land
- Positive covenants.
Section 88B Conveyancing Act 1919 provides for the lodgment of an instrument with a deposited plan which enables the creation and release of easements and profits à prendre or the creation of restrictions and positive covenants upon the registration of the plan.
Section 38(1) of the Strata Schemes Development Act 2015 provides that a section 88B instrument may be lodged with a strata plan, strata plan of subdivision or strata plan of consolidation.
A section 88B instrument with a strata plan, a strata plan of subdivision or strata plan of consolidation may create affecting interests burdening or benefiting:
- lots and common property within the scheme
- land outside the scheme when the land is held under the provisions of the Real Property Act 1900, provided the site definition complies with the requirements for a compiled plan .
Defining the site of affecting interests
The sites of any affecting interests to be created must be defined by rectangular offsets from the building or other structural feature in the same manner as lot boundaries.
- Affecting interests which affect lots must be depicted on the floor plan.
- Affecting interests which affect common property are generally depicted on the location plan. However if the easement affects land within a building it may be more practical to depict the site on a floor plan.
- Affecting interests which affect land outside the strata scheme should be depicted on the location plan.
If the site of the affecting interests is difficult or impractical to define by offsets an exemption should be sought from the Plan and Title Advisor to show bearings and distances.
A section 88B instrument with a strata plan, strata plan of subdivision or strata plan of consolidation may also release easements and profits à prendre.