Advice on covenants please

[exsyd]

I'm currently looking at buying an IP which I think is technically a duplex (one common wall) but has torrens title. The contract shows the subdivision plans with easements for drainage and overhang, which I think I understand, and at the end of the numbered list the last point is 'positive covenant'. Yes, I need to take it to my solicitor, but could anyone just tell me quickly what this means and whether I'm likely to need to worry about this in future? Does it just mean someone can check/fix drainage systems if it affects the other property, or something more than that?

Also, net records show a 'part sale' of $15,000 was registered 4 years ago. Any idea what this might be and again, whether this means there could be another name on the title somewhere, even if not indicated on the search? It just seems odd to me.

I know these are very noob questions - I've actually bought before, but only apartments. Any help appreciated!

 

[RPI]

Ok You are seeing your solicitor anyway so they will fill you in.

Quick answer- relates to obligations to maintain subject of easement

Long answer (My understanding, based on some quick research and does not constitute advice)

A positive covenant in this situation relates to the attempt at enforcing the express obligations to repair an easement. At common law there was no obligation of either the grantor or the grantee to repair the matter in the easement.

a positive covenant, has traditionally been seem as a personal obligation and as such can not pass in title with the land.(ie. it is an agreement between the owners at the time of granting of the easement and cannot be enforced to someone who was not an original party to the agreement, eg subsequent purchaser).

The principles in an NZ case (Cameron v Dalgety) have been applied to common walls in adjoining shop premises (in Rufa Pty Ltd v Cross ) in QLD. However this has been rejected in NSW (in Clifford v Dove)

There is also a benefit-burden principle where those that benefit from the easement must pay for the upkeep (the burden)

A public positive covenant has statutory basis but don't think that applies to you as assume party wall property is not owned by a public authority.

However, there is a statutory basis for the passing of covenant in relation to the benefit part in the Conveyancing Act 1919

And now at common law there are the following requirements for the benefit of covenant to pass.
(1)
The covenant must touch and concern the land to be benefited.4 The covenant must benefit the covenantee in his or her capacity as owner of an interest in the land benefited.5 The criteria are the same at law as in equity6 and generally speaking the covenant must either affect the mode of occupation of the land or it must of itself, and not merely from collateral circumstances, affect the value of the land.7
(2)
The person seeking to enforce the covenant must be a successor in title to the original covenantee and have a legal interest in the land to be benefited.8 The first part of this requirement is easily satisfied as legislation in all jurisdictions except South Australia9 provides that, in the absence of a contrary intention, a covenant relating to the land of any covenantee is deemed to be made with the covenantee and his or her successors in title.10 Under the statutory definition, ‘successors in title’ are deemed to include the owners and occupiers for the time being of the land of the covenantee intended to be benefited.11
(3)
The covenant must have been intended to be for the benefit of the successors of the covenantee as well as for the covenantee personally.12 This intention is now implied by statute in all jurisdictions except South Australia.13
(4)
The land which is benefited by the covenant must be identified or identifiable.14 Extrinsic evidence may be relied on to identify the land.15

However, statutory provisions do not overide the common law rule that the burden of a covenant cannot run with the land.

 

[exsyd]

Thanks, I appreciate it, and acknowledge it does not constitute advice