Section 32C deals with land related restrictions. Registered easements are usually disclosed by annexing the title, and if the title does not adequately describe the easement, the easement document must be provided. Registered covenants can be disclosed by annexing the title, but sufficient particulars are needed, so a covenant described only by a number requires a copy or a description.
Unregistered easements must be specifically identified. The existence of a water, sewerage or drainage pipe constitutes an unregistered easement, and a combined drain has been treated as a feature in the nature of an easement that must be disclosed.
Section 32C requires disclosure not only of a restriction but of any current breach of it. A property subject to a restriction that is being breached can still be sold if the restriction and the breach are disclosed, and it is sensible for the contract to record the buyer's acknowledgment of the disclosure. Building over a registered easement is a breach that must be disclosed in addition to the easement itself, and it may be cured by obtaining the relevant authority's consent, which can be obtained during the contract period. Building over an unregistered easement is likewise a breach. A lease may need to be treated as a restriction, and a section 173 agreement under the Planning and Environment Act 1987 may be another similar restriction, though a requirement to enter into a section 173 agreement is not.
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Building over a registered or unregistered easement is a breach that must be disclosed separately from the easement. A continuing breach of a lease by a tenant may also need disclosure under fair trading principles.
Law referenced: Sale of Land Act 1962 s 32C; Planning and Environment Act 1987 s 173.