60Restrictive covenants for benefit of highway

### 60 Restrictive covenants for benefit of highway > > (1)  In this section, except in so far as the context or subject-matter otherwise indicates or requires, ***lease*** includes an agreement for a lease and ***leaseholder*** includes a tenant under an agreement for a lease. > > > (2)  Where an agreement entered into for the purposes of [section 59](#GS59@EN) by a person having an estate in any land contains a covenant, entered into by that person on behalf of himself, his successors in title, and the person deriving title under him or them, restricting the user of that land or any specified part of it, the covenant is enforceable by the corporation against the covenantor or any such person in like manner and to the like extent as if the covenant had been entered into by the fee simple owner of the land for the benefit of adjacent land held by the corporation in fee simple that was capable of being benefited by the covenant and as if that adjacent land continued to be so held by the corporation. > > > (3)  Subject to this section, a corporation may, at any time, by agreement with the person against whom there is enforceable a covenant to which [subsection (2)](#GS60@Gs2@EN) applies (in this section referred to as "a covenant"), discharge the covenant or may agree to a variation of the covenant. > > > (4)  Subject to [subsection (5)](#GS60@Gs5@EN) , where the land subject to a covenant is under the [Land Titles Act 1980](/view/html/inforce/2026-04-12/act-1980-019) , that Act has effect in relation to the covenant and the instrument creating it as if it were a covenant created under [section 102 (7) of that Act](/view/html/inforce/2026-04-12/act-1980-019#GS102@Gs7@EN) for the benefit of land not under that Act and as if the corporation held an estate in fee simple in that land and was entitled wholly to discharge the covenant. > > > (5)  [*\[Section 60 Subsection (5) amended by No. 23 of 2021, s. 153, Applied:01 Jan 2022\]*](/view/html/inforce/2022-01-01/act-2021-023#GS153@EN) Where a covenant is entered into by the registered proprietor of a lease under the [Land Titles Act 1980](/view/html/inforce/2026-04-12/act-1980-019) in respect of which no certificate of title has been issued, the Recorder of Titles shall enter a notification of the instrument on the folio of the Register, under the [Land Titles Act 1980](/view/html/inforce/2026-04-12/act-1980-019) , for the land and any folio of the Register, under the [Land Titles Act 1980](/view/html/inforce/2026-04-12/act-1980-019) , for the lease. > > > (6)  Where the land subject to a covenant is not under the [Land Titles Act 1980](/view/html/inforce/2026-04-12/act-1980-019) , the covenant and a variation or discharge of it shall be under seal and shall be deemed to be an instrument affecting that land within the meaning of the [Registration of Deeds Act 1935](/view/html/inforce/2026-04-12/act-1935-024) . > > > (7)  Where a covenant is entered into by a leaseholder, it remains in force (unless the instrument creating it contains a provision to the contrary) so long as the covenantor or a person deriving title under him other than a *bona fide* purchaser for value of the legal estate without notice of the covenant remains in possession of the land to which the covenant relates. > > > (8)  Where the whole or any part of the land that is subject to a covenant is not under the [Land Titles Act 1980](/view/html/inforce/2026-04-12/act-1980-019) , the Recorder shall, on the application of the covenantor or any of his successors in title, bring under the Act so much of that land as is not under that Act by registering a qualified certificate of title to it in accordance with [section 21 of that Act](/view/html/inforce/2026-04-12/act-1980-019#GS21@EN) . > > > (9)  The Recorder is not bound, for the purposes of [subsection (8)](#GS60@Gs8@EN) , to investigate the title to any land. > > > (10)  Where by this section the Recorder is required to bring any land under the [Land Titles Act 1980](/view/html/inforce/2026-04-12/act-1980-019) and no survey such as he could require under [section 162 of that Act](/view/html/inforce/2026-04-12/act-1980-019#GS162@EN) is available, the land may be described on the certificate of title by means of a description by metes and bounds instead of by reference to a plan. > > > (11)  Where, in any certificate of title registered pursuant to this section, land is described by means of a description by metes and bounds – > > > > > > (a) no action shall be brought against the Recorder or the assurance fund continued under the [Land Titles Act 1980](/view/html/inforce/2026-04-12/act-1980-019) by reason or in respect of a difference between the area of the land or the position or dimensions of the boundaries stated in the certificate of title and the actual area, position, or dimensions as found by admeasurement on the ground; > > > > > > > (b) [*\[Section 60 Subsection (11) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008\]*](/view/html/inforce/2008-12-31/act-2007-066#JS1@Ja52@GC1@EN) an Australian lawyer who acts for a party taking or proposing to take an estate or interest in the land from the person shown in the certificate of title as the registered proprietor of the land is not under a duty to check the description in the antecedent document of title; and > > > > > > > (c) on such evidence of boundaries as he deems sufficient, the Recorder may cancel the certificate of title and replace it by a fresh certificate of title describing the land in accordance with the evidence. > > > (12)  [Section 84C of the](/view/html/inforce/2026-04-12/act-1884-019#GS84C@EN) [Conveyancing and Law of Property Act 1884](/view/html/inforce/2026-04-12/act-1884-019) (which enables the Supreme Court or the Recorder of Titles in certain cases to discharge or modify restrictive covenants) does not apply to a covenant.