LAND TITLE ACT 1994 - SECT 97A Covenant by registration

LAND TITLE ACT 1994 - SECT 97A

97A Covenant by registration

(1) Subject to this section, a lot may be made the subject of a covenant by the registration of an instrument of covenant under this division.

(2) An instrument of covenant may be registered under this division only if the covenantee under the instrument is the State or another entity representing the State, or a local government.

(2A) An instrument of covenant may be registered even if the covenantor under the instrument is the same entity as the covenantee.

(3) The covenant must—

(a) relate to the use of—

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

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

(b) be aimed directly at preserving—

(i) a native animal or plant; or

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

(c) be for ensuring that the lot may be transferred to a person only if there is also transferred to the person—

(i) another lot that is also the subject of the covenant; or

(ii) non-freehold land that, under the Land Act 1994 , is the subject of the covenant; or

(iii) a lot mentioned in subparagraph (i) together with non-freehold land mentioned in subparagraph (ii) ; or

(iv) a registered lease for another lot or part of a lot.

(4) 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.

(5) 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.

(6) 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 instrument of covenant is registered; or

(c) provide for anything capable of being the subject of an instrument of easement.

(6A) Subsection (6) (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 .

(7) For subsection (3) (a) , the covenant relates to the use of the lot, a part of the lot, a building on the lot or a building proposed to be built on the lot, only if it provides for—

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

Examples of covenants for paragraph (a)—

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

• that the lot must be used for noise attenuation purposes

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

Examples of covenants for paragraph (b)—

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

• that the lot may be used only for organic farming

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

Examples of covenants for paragraph (c)—

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

• that the lot must not be used for industrial purposes

(8) For subsection (3) (a) , the covenant does not relate to the use of the lot, a part of the lot, a building on the lot or a building proposed to be built on the lot, to the extent it provides for—

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

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

Examples—

• an acknowledgement that the lot 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 lot can be used for a stated purpose or any purpose; or

Example—

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

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

Examples for paragraph (d)—

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

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