An 88B instrument is a legal document that creates easements, covenants, or restrictions over land in NSW. It's named after Section 88B of the Conveyancing Act 1919.
These instruments are registered on your property's title and bind all future owners. They can significantly affect what you can build, so understanding them is crucial before any development.
What's in an 88B Instrument?
An 88B instrument typically contains one or more of:
- Easements – Rights for someone else to use part of your land
- Restrictions on use – Limits on how you can use or develop the land
- Positive covenants – Obligations to do something (like maintain a fence)
- Covenants – Promises that run with the land
Common Types of Easements
Drainage Easements
Allow stormwater or sewer pipes to run through your property. You generally cannot build over a drainage easement. These are often 1-2 metres wide along a boundary or through the property.
Right of Carriageway
Gives someone else the right to cross your land for vehicle access. Common in battleaxe subdivisions where the rear lot needs to access the street through a driveway on the front lot.
Right of Footway
Similar to right of carriageway but for pedestrian access only.
Services Easements
Allow utilities (electricity, water, gas, telecommunications) to run cables or pipes through your property. Usually you can't build permanent structures over them.
Party Wall Easements
Allow a wall to be built on or astride the boundary, shared between two properties. Common in semi-detached houses and townhouses. These can actually enable development rather than restrict it.
💡 Check the Deposited Plan too
Easements are shown on the Deposited Plan (DP) with their location and dimensions. The 88B instrument provides the legal terms, but the DP shows you where exactly on the land the easement sits.
Common Restrictions and Covenants
Single Dwelling Covenant
Restricts the land to one dwelling only. This can prevent dual occupancies, even if the zoning would otherwise permit them. These are common in older subdivisions.
Building Materials Restrictions
May require certain materials (e.g., brick construction) or prohibit others (e.g., no fibro). Often found in heritage areas or estate developments.
Building Envelope
Defines where on the lot a building can be constructed. The rest of the lot must remain unbuilt.
Height Restrictions
May limit building height independent of council controls. For example, a covenant might restrict buildings to single storey even if council allows two.
Use Restrictions
May prohibit commercial use, home businesses, or specific activities.
Maintenance Obligations
Positive covenants requiring you to maintain shared facilities, fencing, or drainage infrastructure.
How Easements Affect Development
Before designing any development, you need to know where easements are and what they allow. Common impacts:
- Building footprint – Can't build over most easements
- Setbacks – May need to set back from easement boundaries
- Site coverage – Easement areas often can't count toward buildable area
- Access – Rights of way must be kept clear
- Services – May need to work around existing infrastructure
⚠️ Covenants override zoning
A restrictive covenant can prevent development that would otherwise be permitted under the zoning. For example, if your zone permits dual occupancy but there's a single dwelling covenant, you may not be able to build a duplex without removing the covenant first.
Can Covenants Be Removed?
Yes, but it's not always easy. Options include:
By Agreement
If you can identify and get agreement from everyone who benefits from the covenant (the "benefited" lots), it can be released by agreement. This is often impractical for old covenants where beneficiaries are hard to identify.
Section 88K Application
You can apply to the Supreme Court to have a covenant modified or extinguished under Section 88K of the Conveyancing Act. The court may grant this if the covenant is:
- Obsolete due to changed circumstances
- Unreasonably impeding reasonable use of the land
- Of no substantial benefit to the beneficiaries
This process requires legal advice and can cost $20,000-50,000+ depending on complexity and whether it's contested.
When It's Worth Pursuing
Removing a covenant may be worthwhile if:
- The covenant is clearly obsolete (e.g., 100-year-old building material restriction)
- The development value unlocked significantly exceeds the cost
- Similar covenants in the area have been successfully removed
Historical Covenants
Very old covenants (pre-1919) may appear in different formats, sometimes in old Transfer documents rather than formal 88B instruments. These can include unusual restrictions like:
- Prohibition on selling alcohol
- Requirement for building approval from the original subdivider
- Restrictions on specific trades or businesses
- Building line setbacks
Many of these are effectively obsolete but remain on the title. A solicitor experienced in property law can advise on whether they're still enforceable and how to deal with them.
Where to Find 88B Instruments
88B instruments are registered with NSW Land Registry Services. You can obtain them through:
- NSW Land Registry Services – Direct search
- Information brokers – InfoTrack, GlobalX, etc.
- Your conveyancer – Usually obtained during property purchase
The instrument is referenced on your Certificate of Title by its dealing number. You need to order the actual 88B document to see the full terms.