New South Wales Consolidated Acts

CONVEYANCING ACT 1919 - SECT 88F

88F Effect of certain positive covenants

(1) If a positive covenant is imposed on land, the covenant affects the land and persons from time to time having any estate or interest in the land in the same way as if it were a covenant imposing a restriction on the use of the land.

(2) The prescribed authority having the benefit of a public positive covenant shall have the following powers--

(a) for the purpose of ensuring observance of the covenant, the authority may, by its servants or agents, twice in every year at a reasonable time of the day and upon giving to the person against whom the covenant is enforceable not less than 2 days' notice, enter the land and view the condition of the land and the state of construction or repair of any structure or work on the land, except to the extent that the authority and that person may otherwise agree,

(b) where the covenant requires that person to insure any structure, the authority may insure on the failure of that person to comply with the covenant,

(c) where the covenant requires the carrying out of development of any nature by that person, the authority may carry out development of that nature on the failure of that person to comply with the covenant,

(d) the authority may recover from that person, in a court of competent jurisdiction, any expense reasonably incurred by it in exercising its powers under paragraph (b) or (c).

(3) This section does not prevent the imposition on land under section 88D or 88E or otherwise of a covenant containing powers of a like nature to or a different nature from those granted by this section.

(4) Where a prescribed authority obtains a judgment for an amount payable to it for a failure to comply with a public positive covenant imposed on land under section 88D or 88E, the authority may lodge with the Registrar-General an application for registration of a charge over the land for the amount from time to time payable in accordance with the judgment--

(a) where the land is under the provisions of the Real Property Act 1900 --in the form approved under that Act, or

(b) in any other case--in the manner prescribed for registration of the charge under section 187.

(5) When an application is lodged under the provisions of the Real Property Act 1900 pursuant to subsection (4)(a), the Registrar-General shall, in the Register kept under that Act, make appropriate recordings with respect to the charge to which the application relates.

(6) A charge referred to in subsection (4) takes effect when registered under section 187 or recorded pursuant to subsection (5), as the case may be, and operates in favour of the prescribed authority which applied for registration of the charge as a charge on the land for the amount to which it relates.

(7) Where a charge is imposed under this section, the judgment to which the charge relates shall not be enforced by execution against the land which is subject to the charge, but nothing in this subsection affects any remedy afforded a chargee under this Act, the Real Property Act 1900 or the Strata Schemes Management Act 2015 .

(8) Where a charge is recorded under the Real Property Act 1900 pursuant to subsection (5), the charge is an interest within the meaning of section 42 of that Act.