A positive covenant is either:

• a covenant for maintenance or repair (under s 88BA of the Conveyancing Act 1919 (NSW));

• a public positive covenant (being a covenant imposing obligations to carry out development, provide services or maintain structures, imposed by a prescribed authority); or

• a forestry covenant (being a covenant incidental to a forestry right imposing obligations requiring the construction of maintenance roads and access to trees or forests).

A positive covenant must be drafted in a way so as to directly require the owner of the land burdened to do something positive in connection with the land.

There is usually some confusion between positive covenants for maintenance and repair created by way of the operation of s 88BA of the Conveyancing Act 1919 (NSW) and public positive covenants created by public authorities by way of the operation of ss 88D and 88E . Practitioners should take the time to understand the differences.

Covenants imposed under s 88BA of the Conveyancing Act 1919 (NSW) may be imposed by either the owner of a lot benefited or the owner of a lot burdened in connection with land that is either subject to the burden of an easement or that is the site of an easement (or both). The covenant will create an obligation to maintain and/or repair the part of the lot the subject of that easement. These types of positive covenants are usually between private land owners.

For public positive covenants, involving prescribed authorities (such as local councils), the obligations contained in the terms of the covenant will include an obligation on the owner of the lot burdened to:

• carry out specified development on or with respect to the land;

• provide services on or to the land (or other land within the vicinity); or

• maintain, repair and/or insure structures or works on the land.

Levels of performance (such as the frequency or time limits within which the obligations are to be done) are also commonly found in public positive covenants.

Under the Torrens title system, there is a heavy reliance on the use of LPI forms to create, vary or release positive covenants and practitioners should be familiar with the use of these forms. The relevant forms are provided in the guidance note. Section 88B instruments are also another tool to record positive covenants. See Positive covenants.

In practical terms, there is no difference between a covenant and a restriction on the use of land. Convention and practice has influenced legal practitioners as to the use of certain terminology when describing restrictions and much will depend on how the restriction was created.

A restriction on the use of land is an agreement between two or more parties not to do something regarding a parcel of land. It is usual for the adjoining land to have the benefit of the restriction, however sometimes it will be a prescribed authority (such as the local council). Above all, the restriction must be negative in its nature and cannot create any positive obligations.

A restrictive covenant is also known as a negative covenant. Under the restrictive covenant, the owner of the lot burdened must not do the thing or act identified in the terms of the restrictive covenant.

As with positive covenants, there is a heavy reliance on the use of LPI forms and also s 88B instruments to create, vary, release or extinguish restrictions on the use of land and restrictive covenants. These forms are again provided in the guidance note. See Restrictions on use and restrictive covenants.

A profit a prendre is a legal right to enter land and to remove the produce from the soil of that land (for example, a right to harvest a crop or a right to timber grown on the land).

A profit a prendre is usually created by or with a transfer for a parcel of land. The existence of a profit a prendre will not prevent any dealings with that parcel of land as the profit a prendre is described as a right rather than an encumbrance.

As with positive covenants, restrictions on the use of land and restrictive covenants, LPI forms and s 88B instruments are used to create and remove profits a prendre. See Profits à prendre.

In Victoria, there is no equivalent statutory provision for positive covenants for maintenance and repair like there is NSW. Indeed, the Transfer of Land Act 1958 (Vic) only recognises negative covenants. However, s 173 of the Planning and Environment Act 1987 (Vic) allows a responsible authority (ie a local council) to enter into an agreement with the owner of land and such agreements may impose positive covenants on the owner of the land (for the time being). The requirement to enter into a s 173 agreement is usually associated with the grant of a planning permit.

In Victoria, “Form 18 — Application by a Responsible Authority for the Making or Recording of an Agreement” in Sch 1 of the Planning and Environment Regulations 2005 (Vic) is used to register a s 173 agreement. Practitioners should refer to the Land Victoria Lodging Book for lodging requirements on the Department of Sustainability and Environment (DSE) website. See Positive covenants.

In practical terms, there is no difference between a covenant and a restriction on the use of land. Convention and practice has influenced legal practitioners as to the use of certain terminology when describing restrictions and much will depend on how the restriction was created.

A restriction on the use of land is an agreement between two or more parties not to do something regarding a parcel of land. It is usual for the adjoining land to have the benefit of the restriction, however sometimes it will be a prescribed authority (such as the local council). Above all, the restriction must be negative in its nature and cannot create any positive obligations.

A restrictive covenant is also known as a negative covenant. Under the restrictive covenant, the owner of the lot burdened must not do an identified thing or act.

In Victoria, Form 18 — “Application by a Responsible Authority for the Making or Recording of an Agreement” in Sch 1 of the Planning and Environment Regulations 2005 (Vic) is used to register a s 173 agreement. Practitioners should refer to the Land Victoria Lodging Book for lodging requirements on the DSE website.

See Restrictions on use and restrictive covenants.

A profit a prendre is a legal right to enter land and to remove the produce from the soil of that land (for example, a right to harvest a crop or a right to timber grown on the land).

A profit a prendre is usually created by or with a transfer for a parcel of land. The existence of a profit a prendre will not prevent any dealings with that parcel of land as the profit a prendre is described as a right rather than an encumbrance.

In Victoria, forest property and carbon management agreements and forest carbon rights may be registered on title by virtue of ss 32 and 33 of the Climate Change Act 2010 (Vic).

See Profits a prendre.

A statutory covenant may be registered over a lot to bind subsequent registered owners: s 97A(1) of the Land Title Act 1994 (Qld). The relevant form, which is to be lodged for registration at the Department of Natural Resources, Mines and Energy (DNRME) is a Covenant (Form 31) (Version 3). The covenants are entered into voluntarily by the landowner (as covenantor) and the state or local government (as covenantee) after the private landowner has reached agreement with the council. The covenant may be positive or negative and once registered, is binding on the covenantor and any subsequent registered owners of the land. A covenant must:

• relate to the use of a lot or part of a lot;

• relate to the use of a building built or proposed to be built on a lot;

• be aimed directly at preserving a native animal or plant, or a natural or physical feature of the lot that is of cultural or scientific significance;

• be used for ensuring that all lots that are subject to the covenant are transferred together to another person (the lots subject to the covenant may be freehold, non-freehold or a combination of freehold and non-freehold); or

• be used for ensuring that a lot and a registered lease for another freehold lot or part of a lot that are subject to the covenant are transferred together to another person: s 97A(3) of the Land Title Act 1994 (Qld).

Covenants pertaining to the “use” of the lot can only:

• provide for the purpose for which the lot or building must be used. For example, that a building on the lot must be used for educational purposes;

• provide that this is the only purpose for which the lot or building may be used; or

• provide for a purpose for which the lot or building must not be used. For example, that the lot must not be used for industrial purposes: s 97A(7) of the Land Title Act 1994 (Qld).

Certain covenants relating to the “use” of the lot are not permitted. These include:

• the requiring of adherence to an architectural, construction or landscaping standard;

• a statement, acknowledgement or obligation relating to the use of other land;

• a condition precedent to using a lot for a stated purpose or any purpose; or

• regulation of the conduct of the owner of a lot that is unrelated to, or is ancillary to, the use of the lot: s 97A of the Land Title Act 1994 (Qld).

It is important to note that any covenants (for example, developer's covenants) that are entered into by a landowner with any entity other than the state or the local government are not capable of registration at the Titles Registry. Such covenants give contractual rights between the parties only and must be carefully drafted to ensure an obligation for the landowner to bind any new owner of the property to the covenants and so on: s 97A(2), Land Title Act 1994 (Qld).

A profit a prendre is a legal right to enter land and to remove the produce from the soil of that land (eg, a right to harvest a crop or a right to timber grown on the land).

A profit a prendre is usually created by or with a transfer for a parcel of land. The existence of a profit a prendre will not prevent any dealings with that parcel of land as the profit a prendre is described as a right rather than an encumbrance.

In Queensland, for a profit a prendre to be registered in the Land Registry at the DNRM, it must be prepared using a Profit a prendre (Form 29) form. See Profits a prendre.

In Western Australia, to be registered, covenants must be negative (ie restrictive) in nature. The exception is that positive covenants may be registered in respect of Crown land under s 15 of the Land Administration Act 1997 (WA). Section 15 also permits positive covenants over “agreement land”, which is freehold land in respect of which there was an agreement with the Minister for Lands before the Crown land was transferred to the freehold owner. See Positive covenants.

Generally, restrictive covenants must:

• directly control the use of the land by imposing a negative obligation (ie a restriction);

• benefit the land of the covenantee; and

• be intended to run with the land burdened and benefited.

In practice, the Registrar also will not favour restrictive covenants containing covenant obligations which are personal to third parties, such as the original land developer or a local government.

A restrictive covenant may be registered using a Blank Instrument (B2) Form from Landgate.

Section 129BA of the Transfer of Land Act 1893 (WA) permits the creation of a restrictive covenant in gross for the benefit of a governmental or public authority.

A restrictive covenant may also be created by incorporation in a Transfer instrument.

Finally, it is also possible for a restrictive covenant to be created using a plan or deposited plan or diagram referred to in s 186 of the Transfer of Land Act 1893 (WA) or a strata/survey plan. The location of the restrictive covenant is noted on the plan and an instrument setting out the required details must also be registered.

See Restrictions on use and restrictive covenants.

A profit a prendre is a legal right to enter land and to remove the produce from the soil of that land (for example a right to harvest a crop or a right to timber grown on the land).

The Transfer of Land Act 1893 (WA) does not provide for the registration of a profit a prendre over freehold land and generally such rights have not been accepted for registration. However, statutory rights are accepted for registration, including:

• under s 34 of the Conservation and Land Management Act 1984 (WA);

• under s 52 of the Forest Products Act 2000 (WA); and

• under s 91(1) of the Land Administration Act 1997 (WA), pursuant to s 81R of the Transfer of Land Act 1893 (WA) — in relation to Crown land.

See Profits a prendre.

In South Australia, there is no equivalent statutory provision for positive covenants for maintenance and repair like there is New South Wales and there is no specific procedure for registration of restrictive covenants. However, negative covenants restricting the use of land are sometimes incorporated in encumbrances registered under Pt 12 of the Real Property Act 1886 (SA).

Public positive covenants benefiting a statutory body or local council can be registered in the form of land management agreements under ss 57 or 57A of the Development Act 1993 (SA). The requirement to enter into a land management agreement is usually associated with the grant of development approval.

An Application to Note Land Management Agreement (Form B2) from the Government of South Australia website can be lodged for registration.

See Positive covenants.

In practical terms, there is no difference between a covenant and a restriction on the use of land. Convention and practice has influenced legal practitioners as to the use of certain terminology when describing restrictions and much will depend on how the restriction was created.

A restriction on the use of land is an agreement between two or more parties not to do something regarding a parcel of land. It is usual for the adjoining land to have the benefit of the restriction, however sometimes it will be a prescribed authority (such as the local council). Above all, the restriction must be negative in its nature and cannot create any positive obligations.

A restrictive covenant is also known as a negative covenant. Under the restrictive covenant, the owner of the lot burdened must not do an identified thing or act.

See Restrictions on use and restrictive covenants.

A profit a prendre is a legal right to enter land and to remove the produce from the soil of that land (for example, a right to harvest a crop or a right to timber grown on the land).

A profit a prendre is usually created by or with a transfer for a parcel of land. The existence of a profit a prendre will not prevent any dealings with that parcel of land as the profit a prendre is described as a right rather than an encumbrance.

The definition of “easement” in s 3(1) of the Real Property Act 1886 (SA) includes a profit a prendre. Accordingly, a profit a prendre can be created and registered in the same way as any other easement under that Act.

In South Australia, a forest property agreement may be registered on title by virtue of s 7 of the Forest Property Act 2000 (SA).

Forest property agreements under the Forest Property Act 2000 (SA) are of two types:

• forest property (vegetation) agreements, separating ownership of forest vegetation from ownership of the land on which it grows; and

• forest property (carbon rights) agreements, separating ownership of carbon rights from ownership of the vegetation to which the carbon rights relate.

See Profits a prendre.

A restriction on the use of land may be created by agreement between two or more parties not to do something regarding the identified land. It is usual for the adjoining land to have the benefit of the restriction, however sometimes it will be the local council. Examples of restrictions on the use of land include:

• not to build a structure on the land above a certain height in order to protect a residential amenity, such as a view;

• not to cut down trees so as to preserve the environment; and

• not to build using a certain building product or fencing type so as to preserve the character of the area.

Restrictive covenants can be difficult to define. However, a covenant should restrict the use of the land by the registered proprietor of the land burdened by the covenant.

Restrictive covenants must specify the benefit and burden. The benefit of a covenant is said to “run with” the benefiting lot, when the registered proprietor of that benefiting lot is able to enforce it as owner of the benefited land. The burden of a covenant is said to “run with” the lot, the use of which has been restricted by the covenant if the use may be restrained by the successor in title of the original covenantor (the person who originally entered into the covenant).

See Restrictions on use and restrictive covenants.

Ordinarily, to be enforceable as a covenant on land on future owners, the restriction must be negative in its nature.

In Tasmania, there is no statutory provisions equivalent to those in some other states for positive covenants that bind future owners with obligations for maintenance and repair.

Positive covenants are not valid and will be rejected by the Recorder.

The burden of a covenant can run only with the burdened land if the covenant is restrictive of the use of the land. Positive covenants cannot ordinarily run with the land. The necessary negativity is not tested by the form of the wording of the covenant but rather the substance and intent of the covenant. For example, a covenant to maintain a lot as an open space is restrictive in the sense that it is a covenant not to erect any buildings on the lot. It is positive in form, although restrictive in intent. Similarly, a covenant not to permit a building to fall into disrepair is a positive covenant although negative in form. Thus, it is really a covenant to keep in repair.

The simple test to decide if a covenant is positive or negative is to ask if the owner of the lot can break the covenant by simply doing nothing. If the owner of the lot can break the covenant by simply doing nothing, the covenant is positive, no matter what form it is in and therefore cannot be registered as a restrictive covenant.

Although positive covenants may not be registered as restrictive covenants, positive obligations may run with the land and may be recorded on the title to burden future owners if created by an agreement under s 71 of the Land Use and Planning Approvals Act 1993 (Tas).

Such agreements, known as “Part V Agreements”, or “Part 5 Agreements by reference to the relevant part of the Act”, require council approval as a party to the agreement. The council need not necessarily have rights or obligations recorded by the agreement.

See Positive covenants.

A profit a prendre is a legal right to enter land and to remove the produce from the soil of that land (for example, a right to harvest a crop or a right to timber grown on the land).

Forestry rights are deemed to be profits a prendre under the Forestry Rights Registration Act 1990 (Tas). Under the Act, "forestry right" is defined to include any combination of the following interests in land:

• ownership of trees;

• a carbon sequestration right;

• a right to establish, maintain or harvest, or maintain and harvest trees, together with:

See Profits a prendre.

A covenant is an obligation (whether positive or negative) in respect of the use, ownership or maintenance of particular land (servient land) that is created for the benefit of other land (dominant land): s 167 of the Law of Property Act (NT). The owner of the dominant land of a covenant is known as the “covenantee” while the owner of the burdened land of a covenant is known as the “covenantor”. The covenant may be positive or negative, and, once registered, is binding on the covenantor and any subsequent registered owners of the land.

Covenants can be registered over a lot by lodging and registering a duly completed Creation of Covenant in Gross (Form 58) or a Creation of Covenant (Form 59) with the Registrar-General at the Land Title Office (LTO). Covenants are not registered as either positive or negative. Rather, they are simply registered as covenants or “covenants in gross”.

“Covenants in gross” is an expression that refers to covenants which may be created without need of a dominant land. Under s 168 of the Law of Property Act (NT), a covenant in gross may be created without dominant land if the covenant is in favour of the Northern Territory, a local government body, a statutory corporation or a prescribed person. The Law of Property Act (NT) does not specify for what purposes a covenant in gross may be created.

A profit a prendre is a legal right to enter land and to remove the produce from the soil of that land (for example, a right to harvest a crop or a right to timber grown on the land).

A profit a prendre over a lot may be created by registering Creation of Profit a Prendre (Form 65) with the Registrar-General at the LTO. The existence of a profit a prendre will not prevent any dealings with that parcel of land as the profit a prendre is described as a right rather than an encumbrance.

In the Australian Capital Territory (ACT), there is no equivalent statutory provision for positive covenants for maintenance and repair or public positive covenants in the Land Titles Act 1925 (ACT) like there is in other jurisdictions.

A restriction on the use of land is an agreement between two or more parties not to do something regarding a parcel of land. It is usual for the adjoining land to have the benefit of the restriction, however sometimes it will be a prescribed authority. Above all, the restriction must be negative in its nature and cannot create any positive obligations and it must touch and concern the land which benefits from the restriction.

A restrictive covenant is also known as a negative covenant. Under a restrictive covenant, the owner of the lot burdened must not do an identified thing or act.

The Land Titles Act 1925 (ACT) does not make specific provision for the registration of restrictive covenants. However, the Registrar-General will accept for lodgment a transfer that has a restrictive covenant attached to it. Practitioners should refer to the Land Titles Practice Manual from the Office of Regulatory Services website for lodging requirements.

A profit a prendre is a type of incorporeal right. It is a legal right to enter land and to remove the produce from the soil of that land (for example, a right to harvest a crop or a right to timber grown on the land).

An incorporeal right (other than an annuity or rent charge) may be registered and extinguished in a similar manner to an easement: see ss 103G and 103H of the Land Titles Act 1925 (ACT).