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Encumbrances and covenants in South Australia — what actually binds your title

South Australia does covenants differently — and harder. The Real Property Act 1886 has no provision for registering a classic restrictive covenant, so developers bind estates with a Memorandum of Encumbrance: a nominal rent-charge (often cents a year, never collected) carrying pages of building conditions that run with your title. And unlike every other mainland state, SA gives you no court pathway to clear one on the merits. Here's the full picture.

South Australian owners, buyers and developers who've found a Memorandum of Encumbrance or LMA on a title — or hit estate building rules mid-project — and want to know what genuinely binds the land and whether it can be cleared.

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The SA difference: no covenant register — an encumbrance instead

In Victoria and New South Wales, a restrictive covenant is registered on the title in its own right. South Australia's Real Property Act 1886 contains no provision for that. What SA conveyancing practice invented instead — and has used for a century — is the encumbrance: under section 128B, land can be charged with 'the payment of an annuity, rent-charge or sum of money'. Developers charge the land with a token rent-charge (often one cent to a few dollars a year, never actually collected) in their own favour, and attach to that charge the real payload: covenants about dwelling size, materials, fencing, building envelopes, timing and more.

The result is the Memorandum of Encumbrance you'll see on almost every title in a modern SA estate. Because the encumbrance is registered, its conditions bind you and every future owner while it stays on the title — functionally a covenant, legally a money charge wearing a covenant's clothes. Academic commentary has called the device artificial and called for reform, but it remains standard practice.

Classic restrictive covenants: not registrable on SA titles
Memorandum of Encumbrance (RPA s128B): a nominal rent-charge carrying the developer's building conditions
Registered = binds successive owners while it remains on title
Standard terms are often incorporated from a filed document (RPA s129A) rather than printed in full
Separate again: Land Management Agreements (LMAs) with a council or authority, and registered easements

Why SA is the hardest state to clear one

Every other mainland state gives a court power to modify or extinguish a restriction on the merits — Victoria under s84 of the Property Law Act 1958, NSW under s89 of the Conveyancing Act 1919, Queensland under s181 of its new Property Law Act 2023. South Australia has no equivalent for encumbrance conditions. The Registrar-General's variation and extinguishment power in s90B of the Real Property Act applies to easements only. There is no statutory ground of 'obsolete', no 'impedes reasonable use', no balancing test to argue.

What the Act does provide is s143: an encumbrance may be wholly or partially discharged by an instrument executed by the encumbrancee. In plain terms — you need the signature of whoever holds the benefit of the encumbrance, usually the original developer or its successor. Section 145 adds a narrow path where the secured annuity has ceased under the encumbrance's own terms. That's the toolkit.

The routes that actually work

First, read the memorandum itself — many SA encumbrances answer the question internally. It's common for the conditions to be expressed to apply only until a dwelling is completed, or until a stated date or buildout milestone; some memoranda name a sunset. If yours has expired by its own terms, the practical problem often disappears even while the instrument technically remains on title.

Second, the discharge request: developers who have finished an estate frequently execute discharges (sometimes for an administration fee) because the encumbrance has served its purpose. Third, the defunct-developer route: when the encumbrancee company has been deregistered, its property — including the benefit of the encumbrance — vests in ASIC, and you can apply to ASIC to deal with or release it. Fourth, for a Land Management Agreement, variation or termination is by agreement with the council or authority that holds it. What there is not, anywhere on this list, is a tribunal you can take a reluctant encumbrancee to on planning-style merits — which is why buyers should read encumbrances before purchase, not after.

Encumbrances and PlanSA approval: two separate systems

Planning consent in South Australia is assessed against the Planning and Design Code — the relevant authority does not assess or enforce your encumbrance's private conditions, and a development approval does not override them. The two systems simply coexist: PlanSA can approve the second dwelling your encumbrance purports to prohibit, and the encumbrancee's contractual-style rights under the registered instrument survive the approval untouched.

Land Management Agreements are the exception that proves the rule: they're planning creatures — agreements with a designated authority under sections 192–193 of the Planning, Development and Infrastructure Act 2016, commonly required as a condition of a development approval (bushfire management, land division constraints, conservation) — and they're noted against the title and bind successors until varied or ended with the authority's agreement.

What to do before you buy or build

Start with the title. An SA Certificate of Title ($64, plan generally included, delivered within a business day) shows every registered encumbrance, LMA notation and easement. If a Memorandum of Encumbrance appears, obtain and read the memorandum itself — its own terms decide whether it still bites, who holds it, and whether it has expired.

Then line up the planning side: the free SA Property Snapshot shows your zone and overlays, and the $39 SA planning report gives a plain-English read on what the Code would let you build — the prize that tells you whether chasing a discharge is worth it. If the encumbrance is the last obstacle to a good project, our planners can help you map the discharge strategy.

Real example

Worked example — the estate encumbrance vs the LMA

A 2010 northern-suburbs estate lot carries a Memorandum of Encumbrance securing a 10-cent annual rent-charge to the developer, with conditions: minimum 180 m² dwelling, no second driveway, conditions expressed to apply 'until a dwelling is first completed on the allotment'. The owner's house was finished in 2012 — the conditions are spent by their own terms, and a tidy-up discharge is available from the (still-registered) developer for an admin fee. The neighbouring rural-fringe lot instead carries an LMA requiring ongoing bushfire asset-protection — that one binds every owner and moves only with the council's agreement.

The statutory basis

Encumbrances are created under section 128B of the Real Property Act 1886 (SA) (with standard terms commonly incorporated under section 129A) and discharged under section 143 by instrument executed by the encumbrancee, with section 145 covering satisfaction of the secured annuity. The Registrar-General's variation and extinguishment power in section 90B applies to easements only — South Australia has no statutory merits pathway for clearing covenant-style encumbrance conditions, unlike VIC (s84 Property Law Act 1958), NSW (s89 Conveyancing Act 1919) and QLD (s181 Property Law Act 2023). Where an encumbrancee company is deregistered, its property vests in ASIC under the Corporations Act and ASIC may deal with the encumbrance on application. Land Management Agreements are made under sections 192–193 of the Planning, Development and Infrastructure Act 2016 (SA). This page is general information, not legal advice — the memorandum's own wording governs everything.

Real Property Act 1886 (SA) s 128B

Encumbrance of land — annuity, rent-charge or sum of money (the covenant vehicle)

Real Property Act 1886 (SA) ss 143, 145

Discharge by the encumbrancee; satisfaction of annuity

Real Property Act 1886 (SA) s 90B

Registrar-General variation/extinguishment — easements only

Planning, Development and Infrastructure Act 2016 (SA) ss 192–193

Land management agreements — bind successors; varied by agreement with the authority

ASIC — deregistered company property

Applying to ASIC to deal with an encumbrance held by a deregistered company

Frequently asked questions

What is a Memorandum of Encumbrance in South Australia?

A registered charge over your land — formally securing a nominal annuity or rent-charge (often cents a year, never collected) in favour of the developer — that carries attached conditions about what you can build: dwelling size, materials, fencing, building envelopes and the like. It's SA's substitute for the restrictive covenant, which can't be registered on SA titles, and it binds every owner while it remains registered.

How do I remove an encumbrance from my SA title?

The main path is a discharge instrument signed by the encumbrancee (s143 Real Property Act) — usually the developer or its successor, who will often discharge after estate buildout, sometimes for a fee. Also check whether the memorandum has expired by its own terms (many apply only until a dwelling is built or a stated date). If the developer company has been deregistered, apply to ASIC, in whom the benefit vests. There is no SA court or tribunal pathway to clear it on the merits.

Can a court remove a restrictive covenant or encumbrance in SA?

Not on planning-style merits — SA is the odd one out. The Registrar-General's power to vary or extinguish (s90B) covers easements only, and SA has no equivalent of Victoria's s84, NSW's s89 or Queensland's s181. Without the encumbrancee's cooperation (or an ASIC application for a deregistered holder), a live encumbrance stays.

Does PlanSA approval override my encumbrance?

No. Development approval is assessed against the Planning and Design Code; the authority doesn't consider or enforce private encumbrance conditions, and approval doesn't cancel them. You can hold an approval for a second dwelling and still be exposed under the encumbrance — which is why the discharge question belongs at the start of the project, not the end.

Do SA building encumbrances expire?

Many do — by their own wording. It's common for the conditions to apply only until the dwelling is completed, until estate buildout, or until a stated sunset date. The instrument may remain on the title after its conditions have spent their force, which looks scarier on a search than it is. Reading the memorandum itself is the only way to know.

What is a Land Management Agreement (LMA)?

An agreement with a council or other designated authority under ss192–193 of the Planning, Development and Infrastructure Act 2016 — commonly required with a development approval (bushfire management, land-division constraints, conservation obligations). It's noted against the title, binds future owners, and is varied or ended only by agreement with the authority. Unlike a developer encumbrance, it's a planning instrument with a public purpose.

How do I find out what's on my SA title?

Order the Certificate of Title — in SA the plan is generally embedded, so one $64 document usually shows the lot, easements, any Memorandum of Encumbrance and LMA notations, delivered within a business day. If an encumbrance appears, the memorandum itself (a registered dealing) can be obtained too — and it's the document that actually answers what you can build.

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