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. In this article, we explain how to lodge a caveat and why you may need to do so.
Reasons for Lodging 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 you have a genuine interest 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.
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- is formally withdrawn by the caveator; or
- lapses; or
- removed by a court order; or
- the caveator consents to another’s registration that deals 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 Does a Caveat Require?
In NSW, when lodging a caveat, you need to include:
- the caveator’s name and residential address or registered office, including an address where notices can be served;
- the 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, lawyer or another agent of the caveator.
What Happens if I Incorrectly Lodge a Caveat Without a Caveatable Interest?
Only a person who has a caveatable interest can lodge a caveat. Lodging a caveat without reasonable cause is a serious matter. A court may order you to compensate any person who suffers a financial loss as a result of your incorrect caveat.
Challenging or Removing Caveats
A caveat can be challenged or removed in a number of ways, including the property owner issuing a lapsing notice or the caveator submitting a withdrawal of caveat form. We have published four articles about removing a caveat in the following states:
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)|
Lodging a caveat allows you to protect an interest in property, such as a registered mortgage. 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, call LegalVision’s litigation lawyers on 1300 544 755 or fill out the form on this page.
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