Land Registry’s New Policy on Covenants & Restrictions
New requirements for creating restrictive covenants in transfers and restrictions in plans will come into effect on 1 July 2018.
From 1 July 2018, all Covenants created in Transfers and many Restrictions created in Plans of Subdivision, will be required to incorporate a Memorandum of Common Provisions (MCP) to contain the details of the Covenant or Restriction. The MCP is a separate registered document. The new “short form” look of the Covenant / Restriction will include a standard preamble, the burdened land, the benefited land, reference to a MCP Dealing No for the details, and generally an expiry date.
Historically, developers of multi lot subdivisions have had the option of creating Covenants to control such things as Design Guidelines etc, through contracts / registration of transfers, on a purchaser by purchaser basis. This option (under the Transfer of Land Act 1958), is still allowed by Land Registry, but under the new policy, a MCP is now required in the Covenant creation process. This will affect all Covenant creations whether they be uniform Covenants for estate purposes or “one off” single purpose Covenants.
Restrictions (Same thing as a Covenant)
Some developers request the creation of discretionary Restrictions on their Plans of Subdivision for Building Envelopes, Design Guidelines etc. Sometimes these restrictions are bulky in terms of text and diagrams. Any such bulky details in the Plan must now be contained in a MCP. The MCP will include the full details of the restriction, which will result in a condensed (“short form”) restriction on the Plan of Subdivision. Land Registry will allow Restrictions without a MCP up to a maximum of a single sheet of the Plan. The single sheet may include diagrams.
Through these changes, Land Registry is seeking to reduce the examination time of Covenants (particularly in estates), achieve efficiency, consistency, and reduce the bulkiness of Restrictions in Plans of Subdivision.
How does this affect my current projects creating Covenants under the Transfer of Land Act 1958? For any Contract of Sale signed on or after 1 July 2018, or where there is no Contract of Sale, for any Transfer signed on or after 1 July 2018 – the Covenant to be created in a Transfer of Land instrument must be “short form” and include reference to a MCP, in order to be registrable.
How does this affect my current projects creating Restrictions under the Subdivision Act 1988? For any Plan of Subdivision first signed on or after 1 July 2018 – the Restriction in the Plan of Subdivision must be “short form” (limited to a single sheet) and include reference to a MCP (if required), in order to be registrable.
(Note – Any MCP’s used for controlling Building Envelopes must be endorsed by Council under the subdivision permit prior to registration – Part 4 of the Building Regulations 2006).
Taylors has taken steps to seek the necessary updates to our current Plans of Subdivision, as appropriate. Please contact your Taylors Urban Development Specialist should you want to know more. Yes, there is much more detail, particularly around the MCPs.
You can also see more information at Land Use Victoria’s website Property and Land Titles Victoria