LAND ACT 1994 - SECT 373A Covenant by registration

LAND ACT 1994 - SECT 373A

373A Covenant by registration

(1) Subject to this section, non-freehold land (other than a road for which a person does not hold a road licence) may be made the subject of a covenant by the registration of the document creating the covenant in the appropriate register.

(2) However, non-freehold land the subject of a trust, lease or sublease may be made the subject of a covenant only with the consent of—

(a) for trust land—the trustee; or

(b) for lease land—the lessee; or

(c) for land the subject of a sublease—the sublessee.

(2A) Despite subsection (2) (c) , non-freehold land the subject of a sublease may be made the subject of a covenant without the consent of the sublessee if—

(a) the non-freehold land is—

(i) all or part of land the subject of a term lease, or perpetual lease, for tourism purposes on a regulated island (a
"tourism lease" ); or

(ii) all or part of land the subject of a lease that includes tidal water land (a
"tidal water land lease" ); and

(b) the covenant is for ensuring—

(i) for non-freehold land mentioned in paragraph (a) (i) —the tourism lease may be transferred to a person only if there is also transferred to the person a lease of other non-freehold land the subject of a tidal water land lease; or

(ii) for non-freehold land mentioned in paragraph (a) (ii) —the tidal water land lease may be transferred to a person only if there is also transferred to the person a lease of other non-freehold land the subject of a tourism lease.

(3) A document creating a covenant may be registered under this division only if the covenantee under the document is the State or another entity representing the State, or a local government.

(4) A document creating the covenant may be registered even if the covenantor under the document is the same entity as the covenantee.

(5) The covenant must—

(a) relate to the use of—

(i) the land or part of the land; or

(ii) a building, or building proposed to be built, on the land; or

(b) be aimed directly at preserving—

(i) a native animal or plant; or

(ii) a natural or physical feature of the land that is of cultural or scientific significance; or

(c) be for ensuring a relevant interest in the land may be transferred to a person only if there is also transferred to the person—

(i) a relevant interest in other non-freehold land that is also the subject of the covenant; or

(ii) a lot that, under the Land Title Act 1994 , is the subject of the covenant; or

(iii) a relevant interest in non-freehold land mentioned in subparagraph (i) together with a lot mentioned in subparagraph (ii) .

(7) The covenant—

(a) may be a positive covenant or a negative covenant; and

(b) is binding on the covenantor and the covenantor’s successors in title.

(8) The covenant must not prevent a person from—

(a) registering an interest under this Act; or

(b) exercising the person’s rights under a registered interest; or

(c) releasing or surrendering a registered interest.

(9) Also, the covenant must not—

(a) secure the payment of money, or money’s worth, payable under a condition of a development approval, or an infrastructure agreement, under the Planning Act ; or

Note—

See also the Planning Act , section 107 .

(b) be inconsistent with a planning scheme under the Planning Act that—

(i) applies to the land the subject of the covenant; and

(ii) is in effect when the document creating the covenant is registered; or

(c) provide for anything capable of being the subject of a document creating an easement.

(9A) Subsection (9) (b) does not apply to a covenant if it was entered into under a condition of a development approval, or an infrastructure agreement, under the Planning Act .

(10) For subsection (5) (a) , the covenant relates to the use of the land, a part of the land, a building on the land or a building proposed to be built on the land, only if it provides for—

(a) a purpose for which the land, the part or the building must be used; or

Examples of covenants for paragraph (a)—

• that a building on the land must be used for educational purposes

• that the land must be used for noise attenuation purposes

(b) a purpose that is the only purpose for which the land, the part or the building may be used; or

Examples of covenants for paragraph (b)—

• that a building on the land may be used only for residential purposes

• that the land may be used only for organic farming

(c) a purpose for which the land, the part or the building must not be used.

Examples of covenants for paragraph (c)—

• that a building on the land must not be used for a stated commercial purpose

• that the land must not be used for industrial purposes

(11) For subsection (5) (a) , the covenant does not relate to the use of the land, a part of the land, a building on the land or a building proposed to be built on the land, to the extent it provides for—

(a) an architectural, construction or landscaping standard for the land or building; or

(b) a statement, acknowledgement or obligation relating to the use of other land; or

Examples—

• an acknowledgement that the land is in the vicinity of other land and that the other land is used for industrial purposes

• a statement that the occupier of other land can not be made the subject of any proceedings relating to the occupier’s use of that land

(c) a condition that must be complied with before the land can be used for a stated purpose or any purpose; or

Example—

a condition that a residence can not be built on the land until stated utility services are connected

(d) regulation of the conduct of the owner of the land, if the conduct is unrelated to, or is ancillary to, use of the land.

Examples for paragraph (d)—

• an obligation not to start proceedings in relation to activities happening on other land

• an obligation not to use the land for residential purposes unless a rainwater tank is installed

(12) In this section—


"building" means a fixed structure that is wholly or partly enclosed by walls and is roofed, and includes a part of a building.


"relevant interest" , in non-freehold land, means—

(a) a lease of the land; or

(b) a road licence issued over the land; or

(c) an occupation licence issued over the land.

"tidal water land" means land that, under section 9 (1) , is the property of the State and may be dealt with as unallocated State land.