Quick Answer: A covenant on a NSW property title is a binding obligation or restriction on land use. Buyers must check the title register and deposited plan for these notations to identify building restrictions, maintenance duties, or development conditions before settlement.
Understanding a covenant property title New South Wales entry
When reviewing official property records, a covenant NSW entry is an encumbrance that dictates what a landowner can or cannot do with their property. Unlike zoning rules set by local councils, a covenant is a private agreement written into the land title that binds the current owner and all future owners. It runs with the land.
When you conduct a title search covenant details will appear in the Second Schedule of the title register. These fall into two main categories:
- Restrictive covenants: These limit land use. Examples include prohibiting building above a single storey, restricting fence types, or banning certain building materials.
- Positive covenants: These require the owner to perform an action, such as maintaining a shared access road, repairing a stormwater drain, or contributing to the upkeep of common infrastructure.
Property type risks in NSW
The risk profile of a covenant varies depending on the property type. Assessing these differences helps buyers target their due diligence.
Torrens title homes
For standard Torrens title homes, restrictive covenants are common in newer estates where developers enforce design guidelines. They might dictate facade colours, roof pitches, or prevent subdividing the lot. Positive covenants frequently appear when the property benefits from shared private infrastructure, like a right-of-way driveway or a stormwater detention system, requiring the owner to share maintenance costs.
Strata apartments
While strata by-laws govern internal living rules, covenants on the parent title or embedded in the strata plan can restrict exterior alterations. Buyers of strata apartments must check if positive covenants mandate specific maintenance obligations for common property boundaries or limit the installation of fixtures like air conditioning units on the facade.
Old system land
Properties still under old system title present a higher risk. Covenants can be buried deep within historical conveyance documents, stretching back decades. Because old system land relies on the chain of title documents rather than a single guaranteed register, a standard title search might not immediately reveal ancient restrictive covenants that still legally bind the land. Tracing these requires examining the historical conveyances.
Caveats and unregistered interests
Occasionally, a party will lodge a caveat on the title to protect an interest related to a covenant, especially if there is a dispute over an unregistered agreement or an equitable interest. Always cross-reference any caveats with the covenants listed to understand the full picture of any contested restrictions.
Buyer checklist: How to check for covenants
Use this checklist when reviewing your title search results to avoid settling on a property with hidden restrictions:
- Check the Second Schedule: On the NSW title register, look directly at the Second Schedule for encumbrances. Entries here will state "Restriction on use of land" or "Positive covenant".
- Record the instrument number: The title register will list a dealing number or instrument number next to the covenant. Write this down—you will need it to order the full document.
- Review the deposited plan: Many covenants, especially in new subdivisions, are created via a restrictions sheet attached to the deposited plan. Check the plan for notations about building envelopes, setback requirements, or drainage easements with attached positive covenants.
- Look for variations or releases: Some older covenants may no longer apply. Search for registered dealing numbers indicating a variation or release of the original covenant.
- Verify against council records: If a structure on the property violates a restrictive covenant, council approvals are irrelevant to the private enforcement. Compare the physical structures against the covenant terms.
- Assess easement interactions: Check if a positive covenant relates to an easement on the title. For instance, a drainage easement often comes with a positive covenant requiring the owner to maintain the pipe within that easement.
Restrictive vs Positive covenants
| Feature | Restrictive Covenant | Positive Covenant |
|---|---|---|
| Purpose | Prevents an action or limits land use | Requires an action or ongoing maintenance |
| Common examples | Single dwelling only, no steel roofs, height limits | Maintain shared drainage, repair access roads |
| Enforcement risk | Neighbours or original developer can enforce | Usually enforced by a prescribed authority or neighbours |
| Impact on value | Reduces development potential or limits design | Adds ongoing financial liability to the owner |
When to order additional documents
The standard title register tells you that a covenant exists, but it rarely includes the full text of the restriction. To understand the exact rules, you must order the supporting documents.
If the title references a specific dealing number or instrument number, order that document to read the exact wording of the covenant. If the title refers to a deposited plan for restrictions, order that plan to view the building envelopes or infrastructure diagrams. Doing this before exchanging contracts allows you to confirm whether your intended renovations or land use comply with the encumbrances.
Ordering a title search covenant check
Before you commit to a property, order a Current Title / State Lease search through TitleFinder for $74.50 AUD. This provides the official property records detailing all registered interests, including covenants, easements, and caveats. TitleFinder supplies the title register so you can identify the specific instrument numbers and plan numbers you need to order next for your due diligence.
Note: This information is for due diligence purposes. Always consult a qualified conveyancer or solicitor to interpret covenant obligations and their impact on your contract.
Frequently Asked Questions
Can I remove a covenant from a NSW property title?
Removing a covenant usually requires applying to the relevant court or tribunal to have it extinguished or varied. You must prove the covenant is obsolete, that the beneficiaries no longer rely on it, or that it unnecessarily restricts reasonable land use. This process is expensive, has no guarantee of success, and should never be assumed as a workaround during purchase.
Does a title search show unregistered covenants?
A standard title search only reveals registered covenants. Unregistered or equitable covenants might exist in historical contracts or off-the-plan agreements, but they do not appear on the official property records until formally registered. For old system land, unregistered covenants may still bind the property, requiring deep historical searches of the chain of title.
What happens if I breach a covenant on my property?
If you breach a covenant property title New South Wales entry, an entitled party—such as a neighbour or the original developer—can seek court orders to stop the breach, demand demolition of non-compliant structures, or claim damages. Council approval for building works does not override a private restrictive covenant.
Order the right TitleFinder document
Use this guide as a reference, then order the actual record that answers your question:
- NSW Title Search — $69.90
- NSW Imaged Deposited Plan — $85.90
- NSW Imaged Documents — $91.80
If you are unsure, start with the current title search, then add the plan or instrument if the title points to one.
Need the title search? Use the TitleFinder product links above to order the current title, plan, instrument or state-specific property record you actually need.