Question: Is it permissible for strata to ask another organisation to take out a positive covenant on our common property, including retaining walls and safety fencing?
Can a strata ask another organisation to take out a positive covenant on all its common property, when its common property includes sandstone retaining walls (structural elements) and fencing (safety elements)?
Answer: Yes. A positive covenant can be created over strata common property, but the resolution type depends on who initiates it.
A positive covenant imposes conditions that need to be performed in respect of the land. For example, a positive covenant may impose the need to perform specific maintenance to parts of the property.
Given the limited information, I can’t speak to the appropriateness of the positive covenant, but a positive covenant may be created over any land (which includes strata title). Positive covenants are made pursuant to Part 6, Division 4 of the Conveyancing Act 1919 (NSW); in respect of privately owned land, particularly section 88E.
In the context of strata title there are two common categories of positive covenant:
- one created by an owners corporation; and
- one created by an external party, such as a public authority (e.g. local council, Sydney Water, etc.) or by owners of adjoining land over shared infrastructure (e.g. in respect of shared driveways, boundary fences, or access ways).
An owners corporation can accept a positive covenant by ordinary resolution (see section 34(2) of the Strata Schemes Development Act 2015 (the SSDA); section 30(2) of the Community Land Development Act 2021 (the CLDA)) but may only initiate a positive covenant by special resolution (see section 34(1) of the SSDA; section 30(1) of the CLDA).
Liability limited by a scheme approved under Professional Standards Legislation.This post appears in the July 2026 edition of The NSW Strata Magazine.
Matthew Lo Kerin Strata Lawyers E: matthew@kerinstratalawyers.com.au
