When a developer creates new lots, they can also attach a single legal document that quietly tells you what you can and can't build, what materials you must use, what you must maintain, and what you must not do. In NSW that document is created under Section 88B of the Conveyancing Act 1919 and is universally called a "Section 88B Instrument" or just "the 88B." Every state has an equivalent. Whatever it's called, this document binds you and every future owner of the land — and reading it before you sign a contract is essential.

The 88B (and its equivalents) does several jobs at once. It can create easements, rights of carriageway, restrictions on the use of land (often called "restrictions as to user"), and positive covenants — obligations to do something, like maintain a rainwater tank or an on-site detention pit. Once registered with the plan of subdivision, these burdens automatically pass to anyone who buys the land. There is generally no negotiation.

The exact statutory pathway varies by state. Victoria uses restrictions registered on the Plan of Subdivision under the Subdivision Act 1988, often combined with a Section 173 Agreement (a planning agreement between council and landowner that runs with the land). Queensland uses Community Management Statements under the Body Corporate and Community Management Act 1997 for community-title schemes, or registered covenants under the Land Title Act 1994. WA, SA, Tasmania, the ACT and NT each have parallel mechanisms. Even older urban lots can carry common-law restrictive covenants that don't appear obvious on the title but remain legally binding.

What do these restrictions typically look like? Common examples include: single dwelling only; no further subdivision; minimum or maximum house size or storey count; required building materials (brick or rendered masonry; metal or tile roofing); roof pitch; fenestration; colour palettes; fencing style and height; mandatory tree retention; driveway materials; controls on signage, business use or visible vehicle parking; a deadline to complete the dwelling (often 18–36 months); and positive obligations to install or maintain water tanks, OSD pits, or bushfire asset protection zones. Reading these before you commit is essential because a covenant might prohibit the very design you have in mind.

Questions worth asking the seller:

  • Can I have the full text of any 88B, restriction, covenant, CMS or Section 173 Agreement that affects this lot?
  • Who is the named "release authority" — the developer, council, or no one — and what's the process to seek a variation?
  • Is there a deadline by which the house must be completed?
  • Are there positive covenants requiring me to do or maintain something (rainwater tank, OSD, bushfire APZ)?
  • Has the developer historically approved variations? Can I see precedents?
  • Are there any unregistered developer "design guidelines" that apply contractually even if not on title?
  • For Victoria: are there s.173 Agreements I'm bound by, and what's the variation process?
  • For Queensland community schemes: what are the levies, sinking-fund balance, and any pending major works?

Who can help. A property solicitor — not just a routine conveyancer — is worth engaging when the title carries a covenant-heavy 88B or restriction document. Expect $500–$2,500 for a careful covenant review inside a normal conveyance; substantial extinguishment or variation work runs much higher. A town planner can advise whether the council's local environmental plan (in NSW) might override a private covenant for council-approvable development. An architect or building designer should confirm that your intended design actually complies before you sign anything.

A common misconception is that "old covenants are never enforced." They remain legally binding, and a neighbouring landowner or named beneficiary can enforce them through the courts. Some covenants are time-limited and expire after a stated period; others are perpetual. Some can be varied with a simple developer sign-off; others require an application to the court.

The 88B is not a hurdle to be cleared. Sensible design covenants in a master-planned estate protect amenity for everyone, and they can support land value. But you can only make an informed decision when you've read the actual document — not the marketing summary.

This article is general information only — a starting point for your own questions, not legal advice. The law surrounding registered restrictions, covenants and equivalent instruments varies by state and territory and is subject to change. Always engage a property solicitor or licensed conveyancer experienced in covenant review, and request from the seller the full text of every registered restriction document attached to the title. Independent advice should be obtained before making any property decision.