Home/NSW/88B Instrument

88B Instrument NSW

The 88B Instrument holds the easements, restrictions on the use of land and positive covenants that bind a NSW lot — the document that tells you whether you can build a second dwelling, build over the rear easement, or are committed to maintaining an on-site detention system. Your Certificate of Title references it but doesn't contain it.

Order a copy on its own from $40, or with the title and plan in the Full Planning Pack ($105). Add a plain-English AI Restrictions Review for +$30.

Order an 88B copyWhat's in an 88B
Why this matters in NSW

The restriction isn't on the title — it's in the 88B

A Certificate of Title lists the registered dealings, including a reference to the 88B by number — but it does not reproduce the easements and covenants themselves. The actual wording (whether the lot can have a second dwelling, whether you can build over the rear easement, what a positive covenant commits you to) lives in the 88B Instrument document. That's why a title search on its own is incomplete for a planning or purchase decision.

What an 88B Instrument contains

  • Easements
    Rights over the land in favour of another lot or an authority — drainage easements, sewer easements, rights of carriageway (driveway access), electricity and water easements. An easement can sterilise part of the lot for building purposes and usually requires the benefited party's consent for works near it.
  • Restrictions on the use of land (restrictive covenants)
    Limits on what can be done on the lot — the classic example is 'not more than one dwelling-house', which rules out a second dwelling, dual occupancy or granny flat regardless of what the planning controls allow. Others limit building materials, roof pitch, fencing, setbacks or floor area.
  • Positive covenants
    Obligations to DO something — most commonly to build and maintain an on-site stormwater detention (OSD) system, or to maintain a structure or landscaping. Positive covenants run with the land and bind each successive owner.

When you'd order an 88B Instrument

Before you buy — due diligence

A standalone 88B is the fastest way to find out, before exchange, whether a lot is burdened by a 'single dwelling only' covenant, a rear drainage easement that kills the buildable area, or a positive covenant committing you to maintain a detention basin. The Certificate of Title references the 88B but does not contain the restrictions — so a contract review without the 88B is incomplete.

Before you design — covenant & easement check

If you're planning a second dwelling, a duplex, a pool, a shed or an addition, the 88B tells you whether a registered restriction or easement stands in the way before you spend money on plans. A covenant can defeat a development the zone would otherwise permit.

For a development application

Most NSW councils require the 88B alongside the title and plan where the proposal could touch a registered restriction or easement, or where the Statement of Environmental Effects relies on it. Lodging without it routinely draws an 'additional information' request.

Checking a specific restriction

Sometimes you already know there's a covenant and just need to read its exact words — the burden, the benefit, who can release or vary it, and whether a later dealing has already modified it. The 88B is the source document.

Ordering an 88B Instrument

Standalone
$40

The 88B Instrument on its own — a quick covenant and easement check before you exchange or commission plans.

Most popular
Full Planning Pack
$105

Certificate of Title + Plan of Subdivision + 88B Instrument — the standard set most NSW councils ask for on a development application.

Add-on
+$30

AI Restrictions Review — every easement, restriction and positive covenant translated into plain English with the development implications spelt out.

Registry fees are pass-through and set by NSW Land Registry Services. All prices include GST.

Order an 88B copy →

88B Instrument — FAQ

What is an 88B Instrument?
An 88B Instrument is a document lodged under Section 88B of the Conveyancing Act 1919 (NSW) when a deposited plan (a subdivision) is registered. It creates and records the easements, restrictions on the use of land (restrictive covenants) and positive covenants that affect the lots in that plan. These burdens 'run with the land' — they bind every future owner, not just the one who agreed to them. Most NSW lots created by a subdivision have an associated 88B Instrument.
Why isn't the restriction already on my Certificate of Title?
The Certificate of Title shows you who owns the land and lists the registered dealings — including a reference to the 88B Instrument by number — but it does not reproduce the actual easements and covenants. The wording of each restriction lives in the 88B Instrument document, which is separate. So a title search on its own won't tell you whether you can build a second dwelling or build over the rear easement; the 88B will.
Can I buy an 88B Instrument on its own?
Yes. The 88B can be ordered as a standalone document — from $40 — when that's all you need (for example, a quick covenant check before you exchange contracts or commission plans). It's also commonly ordered together with the Certificate of Title and the Plan of Subdivision in the Full Planning Pack ($105), which is the standard set most councils ask for on a development application.
How do I find the 88B Instrument number?
The 88B Instrument is referenced on the Certificate of Title (and on the deposited plan) by its dealing number. Order a current title search and the 88B reference is on it; we then retrieve the 88B document itself. If you don't have the title, give us the address or the lot and deposited plan number and we'll locate it.
What's the difference between an 88B and an 88E?
An 88B Instrument is created with a subdivision and records the easements, restrictions and covenants for the lots in that plan. An 88E (a positive covenant under Section 88E of the Conveyancing Act) is a positive covenant in favour of a public authority — council, a state agency or Sydney Water — often imposed later as a condition of a development consent, for example to maintain an on-site detention basin. Both bind the land; they're created in different ways and at different times.
I've found a 'single dwelling only' covenant — what does it mean for me?
A restriction limiting the lot to one dwelling-house means a second dwelling, dual occupancy, granny flat or apartment is not legally available on the lot — even where the zone and the Housing SEPP would otherwise permit one — unless the covenant is released or modified. In NSW that's done by agreement with the party who has the benefit of the covenant, or by an application to the Supreme Court under Section 89 of the Conveyancing Act. It's exactly the kind of thing that's far cheaper to discover before you buy or design than after.
Can you explain what my 88B actually means in plain English?
Yes. Real 88B Instruments are written in conveyancing legalese. Our optional AI Restrictions Review (+$30) reads every easement, restriction and positive covenant in your 88B and translates each one into plain English with the development implications spelt out — what you can and can't build, which part of the lot an easement affects, and what any positive covenant commits you to.
Is the 88B Instrument a NSW-only document?
Yes — the 88B Instrument is specific to New South Wales (Section 88B of the Conveyancing Act 1919). Other states record easements, covenants and restrictions differently: Victoria uses the plan of subdivision and registered restrictions / Section 173 agreements; Queensland and the other states have their own instruments. If your property is outside NSW, the equivalent restrictions are found through that state's title and plan documents instead.

Related