A caveat is a type of statutory injunction preventing the registration of particular dealings with real property. A caveat acts as a warning or formal notice to tell the public that there is an interest on the land or property for a particular reason. The word caveat means ‘beware’ and lodging a caveat on real property warns anyone dealing with the property that someone has a priority interest in that property. The party who lodges a caveat is known as a caveator. We explain below how to lodge a caveat and why you may need to do so.
Lodging a Caveat
Each state and territory has an individual system of lodging caveats. For example, in NSW, the Real Property Act 1900 governs caveats. In NSW, when a caveat is lodged at the Land & Property Information (LPI), it effectively prevents the registration of further dealings on the property’s title until the caveat is the following:
- Formally withdrawn by the caveator; or
- Lapses; or
- Removed by an order of the Court; or
- The caveator consents to another’s registration dealing with the property’s title.
Any person with an interest in land or wishes to claim an estate may lodge a caveat. A person who has an Australian court order restraining the registered proprietor from dealing with a property can also lodge a caveat.
What Detail is Required on a Caveat?
In NSW, when completing a caveat for lodgment, you are required to include the following information:
- Caveator’s name and residential address/registered office including an address where notices can be served;
- Name and address of the registered proprietor (we recommend that you complete a title search to ensure this information is correct);
- Reference details for which the caveat relates;
- Particulars of the legal or equitable estate of interest;
- A verified statutory declaration; and
- The signature of the caveator, solicitor or another agent of the caveator.
Why Lodge a Caveat?
If you have an estate or interest in land through which registration of another dealing cannot protect, you may consider lodging a caveat to protect your legal position. This is known as a caveatable interest. You must ensure that this interest in the land is present at the time you are lodging the caveat.
Caveatable interests include a registered or equitable mortgage, transfer, a purchaser under an agreement for sale, a tenant (in certain circumstances), a registered proprietor and contractual rights.
What Happens if I Incorrectly Lodge a Caveat Without a Caveatable Interest?
Only a person who has a caveatable interest is entitled to lodge a caveat or to instruct their lawyer to lodge a caveat on their behalf. Lodging a caveat without reasonable cause is a serious matter, and you may be liable to compensate any person who suffers a resulting pecuniary loss.
Challenging or Removing Caveats
A caveat can be challenged or removed in a number of ways, including a Lapsing Notice or submitting a Withdrawal of Caveat form. We have published three articles about removing a caveat in Victoria, New South Wales and Queensland:
- Removing a caveat in Victoria
- Removing a caveat in New South Wales
- Removing a caveat in Queensland
- Removing a caveat in Western Australia
Legislation Governing Caveats
|Australian Capital Territory||Land Titles Act 1925 (ACT)|
|New South Wales||Real Property Act 1900 (NSW)|
|Queensland||Land Title Act 1994 (QLD)|
|Victoria||Transfer of Land Act 1958 (VIC)|
|South Australia||Real Property Act 1886 (SA)|
|Northern Territory||Land Title Act 2000 (NT)|
|Western Australia||Transfer of Land Act 1893 (WA)|
|Tasmania||Land Titles Act 1980 (TAS)|
Before lodging a caveat, take steps to ensure you have a caveatable interest in the property otherwise you may be liable to pay compensation to the wronged parties. If you need advice on your caveatable interest or assistance with drafting a caveat, get in touch with our commercial lawyers. Fill out the form on this page or call us on 1300 544 755.