New South Wales Consolidated Acts

CONVEYANCING ACT 1919 - SECT 88BA

88BA Positive covenants for maintenance or repair

(1) A covenant may be imposed requiring the maintenance or repair, or the maintenance and repair, of land that is the site of an easement or other land that is subject to the burden of the easement (or both) by any one or more of the persons from time to time having the benefit or burden of the easement.

(2) Such a covenant may be imposed--

(a) by registration under this Act or the Real Property Act 1900 (as the case may require) of the instrument indicating the persons bound by or including the terms of the easement, if the terms of the covenant are included in that instrument, or

(b) by registration under the Real Property Act 1900 of a memorandum of positive covenant in the form approved under that Act that includes the terms of the covenant, if the site of the easement is under the provisions of that Act, or

(c) by registration under Division 1 of Part 23 of a deed expressed to be made under this section and including the terms of the covenant, if the site of the easement is not under the provisions of that Act.

(3) The instrument including the covenant must clearly indicate the land which is to be maintained or repaired, the land to which the benefit of the covenant is appurtenant and the land which is subject to the burden of the covenant. If the land is subject to an easement without a dominant tenement created in favour of a prescribed authority (as referred to in section 88A), the instrument must indicate the name of the prescribed authority.

(4) The instrument must be executed by each person to be bound by the covenant--

(a) who has an estate or interest registered under the Real Property Act 1900 in land to which the benefit or burden of the covenant relates, or

(b) who is seised or possessed of an estate or interest in land to which the benefit or burden of the covenant relates, if the land is not under the provisions of that Act.

(5) When recorded in the Register kept under the Real Property Act 1900 , such a covenant is an interest within the meaning of section 42 of that Act.

(6) Such a covenant may be released or varied--

(a) by registration under the Real Property Act 1900 of a dealing in the form approved under that Act providing for the release of the covenant or for variation of the covenant, if the site is under the provisions of that Act, or

(b) by registration under Division 1 of Part 23 of a deed of release or a deed of variation, if the site is not under the provisions of that Act.

(7) The instrument releasing or varying the covenant must be executed by--

(a) each person for the time being entitled to enforce the covenant or otherwise having the benefit of the covenant, and

(b) each person against whom the covenant may be enforced for the time being, in the case of a variation.