Hi, I am reviewing a property contract for potential purchase. In the title search page it says: SECOND SCHEDULE (2 NOTIFICATIONS) --------------- 1. RESERVATIONS AND CONDITIONS IN THE CROWN GRANT(S) 2. A38*****3 COVENANT I am wondering what those two points mean. For 2nd point, where can I get further details on that covenant? I checked rest of the contract there is no description of that covenant. Property is in Sydney. I have masked the covenant number for this forum post as I am not sure what that represent.
Reservations and Conditions in the Crown Grant is a clause noted on most certificates of title in NSW. The original Crown Grant will specify what conditions the Crown imposed when it first granted the land. That original Grant may have related to a much larger parcel of land, of which the land in question was once part thereof. If a prospective purchaser or owner of land is interested as to the conditions that apply to the land then they will have to search back through the prior titles until they locate the original Grant. This may not be able to be done electronically. In terms of the Covenant, a copy of the Covenant should be attached to the Contract. In some instances, especially with older covenants, this may be in the form of a memorandum of transfer attached to the Contract and may not in itself be described as a covenant on the actual document attached to the Contract.
Thanks @Dan L for the explanation. I can see there is a "Memorandum of Transfer" document attached in the contract. I can also see there is a paragraph describing the covenant. However, I am having hard time understanding the lingo in that paragraph. Pls see below extract of that paragraph.
Generally, if a relevant covenant is contained in an 88B Instrument it would generally have a reference beginning with for example "DP 1234567 RESTRICTION(S) ON THE USE OF LAND". A Section 88B Instrument is ordinarily lodged for registration at the same time as a plan of subdivision and sets out any easements, restrictive or positive covenants that are to affect the allotment (s) to be registered.
The covenant essentially states that any dwelling erected on the land shall not be for consideration of less than 250 pounds.
But who are you going to find who is able to consent to the removal of such an old an obsolete restriction? Will the LTO wipe it as of right? (Like very old fencing covenants or issues predating town planning regulations)
See s81 I of the Real Property Act 1900 which enables the extinguishment of a restrictive covenant involving, amongst other things, the value of structures where that covenant has been in effect for 12 years or more and the covenant has lost practical value. Application is made by the registered proprietor of the servient tenement - ie the land which suffers or has the burden of the covenant. Notices are served on all parties with an interest in the covenant, e.g. the proprietor of the dominant tenement or can be advertised. Typically, provided that there is no caveat prohibiting the granting of an application to extinguish the restrictive covenant, the Registrar General will then extinguish the Covenant at the expiration of 1 month after publication or service of the Notice.
Hey, just found this old thread and have one question on a land I am planning to buy and build duplex. Land is fulfilling all guidelines for council approval for duplex build but developer has put restruction in 88B for building duplex but BA and town planner are saying it can be overridden by council approval. But as it's clearly stated as restriction in contract, will council approve it or how much risk is there that council wont approve it? Anybody came across similar situation?
This is common for land developers. They may prohibit duplexes or even type of construction eg brick and tile. The TP is best to advise on the local government approval prospects. Some of these covenants are old and no longer a issue once the developer has sold up and moved on.
T Thanks Paul, TP is saying it can be overrriden with council approval and should not be a problem. Council is saying they "might" consider it and if they will approve, it will be up to developer consent, which I am not sure of. Contract is saying you may subdivide after 3 years but my plan is to buy and build a duplex immediately and hence the confusion.
