A caveat is a Latin word meaning ‘warning’ or ‘caution’. It helps protect the rights of the party who lodged the caveat by ‘warning’ anybody searching the land titles register that there is another interest on the property. For example, a person buying land may lodge a caveat to prevent others from claiming title.
Because a caveat prevents new mortgages or leases being added to the title, it restricts how you deal with the land. In this situation, you would need to remove the caveat.
In Western Australia, the Transfer of Land Act 1893 (WA) (the Act) and Landgate, the land titles office, governs caveats. An owner can remove a caveat in Western Australia by either:
- action by the Registrar;
- action by the Commissioner of Landgate WA; or
- an act of the Supreme Court.
We unpack these below.
But First, the Basics
When talking about caveats, it’s difficult to avoid using some legal terminology. We’ve set out some of the basic terms below for reference.
|Legal Interest||A legal interest is when you have a legal title or right to something. When discussing property and caveats, a legal interest for the owner of the land is the right to legally enforce, possess and use the property. A caveator can hold either a legal or equitable interest.|
|Equitable Interest||An equitable interest is a beneficial or financial interest. In property law, for example, a beneficiary of a trust that is holding land for the beneficiary will have an equitable interest in the land.|
|Caveator||The caveator is the person who has registered the caveat (as opposed to the land owner).|
|Land Title||Each state and territory has a central register of all land in the state showing the owner of the land. The land title is the official record.|
|Show Cause||Where a caveator is required to give a good reason as to why the caveat should remain on the land title.|
The caveator can withdraw the caveat at any time by submitting Form A6 -Withdrawal of Caveat to Landgate. Broadly speaking, this is the easiest way to remove a caveat, and you should always try to negotiate a withdrawal on a good faith basis.
In WA, there are specific withdrawal rules about caveats which prevent improper dealings. As the registered land owner, you can lodge a caveat to prevent improper dealings on your property by submitting Form C4 – Caveat (Improper Dealings). This stops registration of any documents that the owner would ordinarily need to sign, for instance, a mortgage or lease. This type of specific caveat must be lodged under all the names of the land owners and can only be withdrawn if all the owners show up in person to the Landgate office to verify their identities.
2. Action by the Registrar
As the registered land owner, you can serve notice on the caveator stating that their caveat will lapse within 21 days unless they take the following action before the notice period ends:
- obtain an order from the Supreme Court extending the caveat’s operation; and
- lodge a copy of the order with the Registrar.
The court then has the power to determine whether or not the caveat should be removed.
It is possible that by serving a lapsing notice on the caveator, the caveator may also decide to withdraw the caveat on its own. In this case, the notice can act as a warning to a caveator who has not withdrawn its caveat previously or to serve on a caveator who you have no connection with.
After the caveat has been removed, the caveator cannot relodge the caveat unless they obtain leave of the court or with your consent.
3. Action by the Commissioner
The Commissioner of Titles can require a caveator to withdraw its caveat if they believe the interest no longer exists. If this occurs, the Commissioner can either:
- Serve the caveator with notice requiring them to withdraw the caveat within 14 days; or
- To commence proceedings in the Supreme Court for the caveator to “show cause” – that is, show a reason as to why the caveat should remain.
The Commissioner can either do this of their own accord or on the application of any person with an interest in the land — which includes beneficiary interests. For example, this could be a person who is a beneficiary of the land under a trust.
If the caveator doesn’t respond in 14 days, then the Commissioner can direct the Registrar to remove the caveat from the register and send notice of the removal to the caveator.
4. Action by the Supreme Court
If a caveat has been lodged on your land and the caveator refuses to withdraw it for any reason, then you may apply to the Supreme Court of WA to show why the caveat should not be removed, and the Supreme Court will then make a decision.
Like all decisions which involve going to court, this should only be done as a last resort to save on costs. But if you need to remove the caveat urgently (for instance, to sell the land by a certain date), this avenue may best suit your circumstances. The court can make a decision either ex parte (i.e. without the caveator present) or otherwise as to how to deal with the caveat.
If there has been a caveat lodged on your property in WA which you want to have removed, there are a number of key points to consider:
- Can you negotiate the withdrawal of the caveat?
- If not, you can remove the caveat by either notifying the caveator or applying directly to the Supreme Court — pick the best method based on the urgency of the removal and purpose for removing the caveat.
- If the interest in the caveat no longer exists, the Commissioner also has the right to notify the caveator and ask the Registrar to remove the caveat.
If you have any questions or need assistance removing a caveat in Western Australia, get in touch with our specialist commercial leasing lawyers in Perth on 1300 544 755.
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