Real Property Amendment Act 1998 (NSW)
New South Wales
Real Property Amendment Act 1998
No 31
Contents
Page
| 1 Name of Act | 2 |
| 2 Commencement | 2 |
| 3 | Amendment of Real Property Act 1900 No 25 | 2 |
| Schedule 1 | Amendments | 3 |
New South Wales
Real Property Amendment Act 1998
No 31
Act No 31, 1998
An Act to amend the Real Property Act 1900 to provide for the extinguishment of certain restrictive covenants, including those that are no longer of any practical value, and to provide for the lodgment of caveats against such extinguishment; and for other purposes. [Assented to 15 June 1998]
| Section 1 | Real Property Amendment Act 1998 No 31 |
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Real Property Amendment Act 1998.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Amendment of Real Property Act 1900 No 25
The Real Property Act 1900 is amended as set out in Schedule 1.
Real Property Amendment Act 1998 No 31
| Amendments | Schedule 1 |
| S c h e d u le | 1 | A m e n d m e n ts |
(Section 3 )
[1] Part 7A, Division 3, heading
Omit the heading. Insert instead:
|
of restrictive covenants
[2] Section 74F Lodgment of caveats against dealings, possessory applications, plans and applications for cancellation of easements or extinguishment of restrictive covenants
Insert after section 74F (4A):
(4B) Any of the following persons may lodge with the Registrar-General a caveat prohibiting the Registrar-General from granting an application to extinguish a restrictive covenant:
| (a) | a person who has a registered interest in the land to which the benefit of the restrictive covenant is appurtenant, |
| (b) | a person who claims to be entitled to an equitable estate or interest in that land, |
| (c) | a person who is recorded in the Register as having the right to release, vary or modify the restrictive covenant, |
| (d) | a person who is recorded in the Register as a person whose consent is required to a release, variation or modification of the restrictive covenant. |
| (4C) | A caveat may be lodged under subsection (4B) whether or not the restrictive covenant is already the subject of an application for extinguishment under Part SA. However, if such an application has been made and a notice in relation to the application has been given under section 81D then, to be effective, the caveat may only be lodged before the end of the period specified in the notice. |
Real Property Amendment Act 1998 No 31
| Schedule 1 | Amendments |
[3 ] Section 74F (5) (b) (v)
| Insert “ , or the right arising out of a restrictive covenant,” after “ interest” . |
[4 ] Section 74F (11)
Insert after section 74F (10):
| (11) | On the lodgment of a caveat under subsection (4B) in relation to a restrictive covenant, the Registrar-General must, if an application for extinguishment of the restrictive covenant has been lodged in the office of the Registrar-General, or is later lodged, give notice in writing of the lodgment of the caveat to the applicant concerned. |
[5 ] Section 74H Effect of caveat lodged under section 74F
Insert after section 74H (1) (a) (iv):
or
| (v). | extinguish any restrictive covenant, |
[6 ] Section 74H (1) (a)
Omit “or the cancellation of the recording of the easement” . the extinguishment of the restrictive covenant” .
[7 ] Section 74H (1) (b) (v)
Insert after section 74H (1) (b) (iv):
, or
(v) the extinguishment of a restrictive covenant,
[8 ] Section 74H (1) (b)
Omit “ or the cancellation of the recording of such an easement” . Insert instead “, the cancellation of the recording of such an easement or the extinguishment of such a restrictive covenant” .
Real Property Amendment Act 1998 NO 31
| Amendments | Schedule 1 |
Section 74H (1) (b)
Omit “estate or interest” .
Insert instead “estate, interest or right” .
Section 74H (5)
Insert “ , or a particular right arising out of a restrictive covenant, after “ land” where firstly occurring.
Section 74H (5) (r)
Insert “ , extinguishing” after “ releasing” .
Section 74H (5) (t)
Omit “ or 74J ( l ) ” . Insert instead “ , 74J (1) or 74JA (2)
Section 74JA
Insert after section 74J:
74JA Lapse of caveat regarding extinguishment of restrictive
covenant
| (1) | This section applies if: | |||
| ||||
| (2) | The person who made the application for extinguishment may apply to the Registrar-General, in the approved form, for the Registrar-General to serve a notice under this section. |
Real Property Amendment Act 1998 No 31
| Schedule 1 | Amendments |
(3) If the person makes such an application, the Registrar-General must prepare for service on the caveator a notice to the effect that the application for lapsing has been made and that unless, before the expiry of 21 days after the date on which the notice is served, the caveator takes the action referred to in subsection (4), the caveat will lapse and the restrictive covenant will be extinguished.
| (4) | Where a notice prepared under this section has been served on a caveator, the caveat, to the extent that it would, but for this subsection, prohibit the extinguishment of the restrictive covenant to which the notice relates, lapses at the end of 21 days after the date on which the notice was so served unless, before the expiry of that period, the caveator has: | |||
|
[14] Section 74K Power of Supreme Court to extend operation of a caveat lodged under section 74F
Omit “ or 74J ( l ) ” . Insert instead “ , 74J (1) or 74JA (3)” .
[15] Section 74K (6)
Inset after section 74K (5):
| (6) | For the purposes of this section, a caveator served with a notice under section 74JA (3 ) (in relation to a restrictive covenant) is taken to have a claim that has substance if the caveator: | |
|
Real Property Amendment Act 1998 No 31
| Amendments | Schedule 1 |
| (b) | is recorded in the Register as having the right to release, vary or modify the restrictive covenant, or as being a person whose consent is required to a release, variation or modification of the restrictive covenant, and should have been so recorded. |
Section 74M Withdrawal of caveats
Omit section 74M (2). Insert instead:
| (2) | I f | |||
| ||||
| the caveat is taken to have been withdrawn. |
Section 74O Restrictions on lodgment of further caveats if earlier caveat lapses or is withdrawn
Insert “ or any particular right arising out of a restrictive covenant” after “ land” in section 74O ( l) .
Section 74O (1) (b)
Omit “ or 74J ( l ) ” . Insert instead “ , 74J (1) or 74JA (3)” .
Section 74O (1)
Omit “ same estate or interest” .
Insert instead “same estate, interest or right” .
Real Property Amendment Act 1998 No 31
| Schedule 1 | Amendments |
[20] Section 74R Right to obtain injunction not affected
Insert after section 74R (e):
| (f) | where the caveat relates to an application for the extinguishment of a restrictive covenant restraining the extinguishment of the restrictive covenant. |
[21] Part 8A (sections 81-81L)
Insert after section 80A:
| ||
|
81 Definitions
In this Part:
building materials covenant means a restrictive covenant that restricts the type, style or proportion of building materials that may be used in the construction or repair of buildings or other structures.
fencing covenant means a restrictive covenant:
| (a) | that relates to liability for the erection, replacement or maintenance of fences by imposing a condition that contributions to the cost of erecting, replacing or maintaining the fence be made, or |
| (b) | that imposes any condition that either restricts permissible building materials for fencing or restricts the style, height or other dimension of fencing that may be constructed. |
restrictive covenant means an express or implied obligation, originating in an instrument, to refrain from using land in a particular way or from doing a particular thing in relation to land.
Real Property Amendment Act 1998 No 31
| Amendments | Schedule 1 |
value of structures covenant means a restrictive covenant that restricts the construction or repair of any building or other structure by a condition that the building or structure must have a value of, or above, a specific amount.
| Division 2 | Applications to have restrictive covenants extinguished |
81A Registered proprietor of land may apply to have a
restrictive covenant extinguished
A person who is the registered proprietor of land that is subject to the burden of a building materials covenant, fencing covenant or value of structures covenant that has been in effect for at least 12 years may make a written application in the approved form to the Registrar-General to have the restrictive covenant extinguished.
If more than one person is the registered proprietor of the relevant burdened land, all of the registered proprietors must join in the application or consent to the application.
An application may relate to more than one restrictive covenant.
The Registrar-General may require an application to be accompanied by either or both of the following:
| (a) | a list of the names and addresses of all persons who are required to be notified of the application under section 81D of which the applicant is aware or, if the addresses of those persons are unknown, with evidence of the efforts made by the applicant to ascertain the addresses of those persons, |
(b) any other evidence.
818 Registrar-General may ask the registered proprietor for
further information
| ( l ) | The Registrar-General may ask any person who has applied for a restrictive covenant to be extinguished to provide further information to support the application. |
Real Property Amendment Act 1998 No 31
| Schedule 1 | Amendments |
Such a request must be made in writing and must specify a date by which the person is required to provide the information.
If the person does not respond to the request of the Registrar-General to the Registrar-General's satisfaction by the date specified, the Registrar-General may give the person a further written notice requiring the person to provide the information within 28 days after the date of service of the second notice and warning the person that failure to respond to the notice may result in the rejection of the application.
If the person who applied does not respond to the request of the Registrar-General within that 28-day period, the Registrar-General may reject the application.
81C Registrar-General must reject invalid application without
further consideration
| (1) | The Registrar-General must reject an application to extinguish a restrictive covenant if, in the opinion of the Registrar-General, the restrictive covenant to which the application relates: | |||
| ||||
| (2) | The Registrar-General must reject the application if, for any other reason, the Registrar-General is satisfied that the application should not be accepted. |
| Division 3 | Right to be notified of application for extinguishment of restrictive covenant |
81 D Registrar-General must notify certain persons of
application for extinguishment of restrictive covenant
The Registrar-General must give written notice of any application to extinguish a restrictive covenant accepted under this Part to each of the following:
| (a) | every person with a registered interest in the land to which the benefit of the restrictive covenant is appurtenant, |
Real Property Amendment Act 1998 No 31
| Amendments | Schedule 1 |
| (b) | every person of whom the Registrar-General has notice who, in the opinion of the Registrar-General, has an equitable estate or interest in that land, |
| (c) | every person who is recorded in the Register as having the right to release, vary or modify the restrictive covenant, |
| (d) | every person who is recorded in the Register as a person whose consent is required to a release, variation or modification of the restrictive covenant. |
81E Form of notice
A notice under section 81D:
| (a) | must specify the restrictive covenant to which the application relates, and |
| (b) | must specify the land to which the restrictive covenant relates (the land benefited and the land burdened by the restrictive covenant concerned), and |
| (c) | must set out the procedure for extinguishment of the restrictive covenant, and |
| (d) | must specify that the person to whom the notice is addressed has the right to object to the extinguishment by lodging a caveat under section 74F (4B), and |
| (e) | must state that the application will not be granted before the end of such period as is specified in the notice. |
81 F Period of notice
| (1) | The period specified in a notice under section 8 1D must | |||
| be: | ||||
|
Real Property Amendment Act 1998 No 31
| Schedule 1 | Amendments |
| (2) | The Registrar-General may specify a longer period of notice or may give a second or subsequent notice in accordance with section 12 (1) or 12A. Where a second, or subsequent, notice is given, a reference in this Act to the period specified in a notice under section 81D is a reference to the period specified in the last such notice given. |
81G Service of notice
| (1) | A notice given under section 8 1D must be served personally or by registered post at the last address of the recipient known to the Registrar-General. | |||||
| (2) | However, the Registrar-General may, if he or she considers it appropriate, give notice to some or all of the persons referred to in section 8 1D by advertisement rather than by personal or postal service. Notice may be given to a person by advertisement only if the Registrar-General considers that the relevant restrictive covenant is unlikely to be of real benefit to the person: | |||||
| ||||||
| (3) | If the Registrar-General gives notice by advertisement, that notice must comply with section 8 1E and must be published in a newspaper circulating generally throughout the State. | |||||
| (4) | To avoid doubt, section 77 of the Interpretation Act 1987 does not apply to subsection (1). |
Real Property Amendment Act 1998 No 31
| Amendments | Schedule 1 |
81H Service of notice by person other than Registrar-General
The Registrar-General may, instead of complying with the service obligations created under this Division, if he or she thinks it appropriate, direct the person who made the application to meet those obligations by serving notice on specified persons in a manner and form approved by the Registrar-General.
The Registrar-General may require that the service of any person, and the particulars of the address of any postal service, be verified by statutory declaration of the person who served them or of some other person specified by the Registrar-General.
The Registrar-General may reject an application to extinguish a restrictive covenant if not satisfied that a person directed to meet the service obligations under this Division has met those obligations in the manner and form approved by the Registrar-General.
If the person directed under this section proves to the satisfaction of the Registrar-General that the person has tried to serve all relevant persons personally or by registered post, the Registrar-General may, if he or she considers it appropriate in accordance with section 81G (2), decide that the persons who have not been given such notice may be given notice by advertisement under that subsection. The Registrar-General may further direct the person to give that notice and to verify by statutory declaration that he or she did so.
If the Registrar-General has given written notice to a person that he or she is satisfied that the person has met the service obligations under this Division, the relevant persons referred to in section 8 1D are taken to have been properly served with notice for the purposes of this Part.
Real Property Amendment Act 1998 No 31
| Schedule 1 | Amendments |
| Division 4 | Extinguishment of restrictive covenants |
81I Registrar-General may extinguish a restrictive covenant
after application made
| (1) | This section applies i f | |||||||
| ||||||||
| (2) | The Registrar-General may grant the application if the Registrar-General is satisfied that the application was properly made, and that the restrictive covenant to which the application relates: | |||||||
|
81J Registrar-General may extinguish a restrictive covenant
without receiving an application
| (1) | The Registrar-General may extinguish a restrictive covenant without receiving an application if the Registrar-General is satisfied that: | |
|
in operation, and the time of its operation has
expired, or
| (b) | the separate parcels of land that were respectively burdened and benefited by the restrictive covenant have been consolidated into a single parcel, or |
Real Property Amendment Act 1998 No 31
| Amendments | Schedule 1 |
| (c) | the restrictive covenant is personal to the covenantee or that the covenantee owned no neighbouring land in connection with which the benefits of the covenant can be enjoyed, or |
| (d) | there is no express annexation of the benefit of the covenant to ascertainable land and the relevant covenant was created before 1 July 1920, or |
| (e) | the restrictive covenant has no practical value or no practical application. |
| (2) | This section does not apply if the Registrar-General has received an application under this Part to extinguish the relevant restrictive covenant and has not rejected the application under Division 2 or 3. |
81K Cancellation of recording of restrictive covenant
| (1) | If the Registrar-General decides to grant an application to extinguish a restrictive covenant, or otherwise decides to extinguish a restrictive covenant, the Registrar-General must cancel the recording of the restrictive covenant in the Register. |
| (2) | A restrictive covenant is extinguished when the recording of the restrictive covenant in the Register is cancelled. |
81L Effect of extinguishment
| (1) | If a restrictive covenant is extinguished under this Part, the restrictive covenant is not enforceable and is of no effect. |
| (2) | The extinguishment of a restrictive covenant under this Part is binding on all persons, whether of full age or capacity or not, interested in enforcing the restrictive covenant whether or not they have had notice of its proposed extinguishment. |
Page15
Real Property Amendment Act 1998 No 31
| Schedule 1 | Amendments |
[22] Section 130 Barring of actions
Insert after section 130 (4):
| (5) | No action based on the extinguishment of a restrictive covenant can be brought against the Registrar-General where the person alleging loss from that extinguishment had notice, by personal service or otherwise, or was otherwise aware, that an application for extinguishment of the restrictive covenant had been made, and had omitted to lodge a caveat forbidding the grant of the application or had allowed such a caveat to lapse. |
[23] Schedule 3 Savings and transitional provisions
Insert at the end of clause 1 (1):
Real Property Amendment Act 1998
[Minister's second reading speech made in
Legislative Assembly on 20 May 1998
Legislative Council on 2 June 1998]
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