Lodging a caveat on a title is a relatively straightforward process. There is legislation in each Australian state and territory regulating the systems for lodging caveats. It involves lodging a form at the relevant land titles office in the State where the property is located.

All too often, people who are owed money by someone think that they have an automatic right to lodge a caveat over their property. The simple answer is no you don’t. There must be a caveatable interest. You cannot simply lodge a caveat if you are a wronged party.

So when can you lodge a caveat? And what exactly is one?

What is a caveat?

A caveat is a kind of statutory injunction. It serves an important function, acting as a warning to potential purchasers and others that someone is claiming an interest in the property. Once a caveat is lodged, it prevents further dealings from being registered on the property’s title.

What is a caveatable interest?

Having a caveatable interest means having a legal or equitable interest in land. If you have a Court judgment against someone, it does not automatically mean you, therefore, have a caveatable interest and can lodge a caveat over their property. Caveatable interests commonly include:

  • Mortgagees;
  • Purchasers of property under a contract for sale of the land; and
  • Goods or services agreements where a specific clause is included charging the purchaser/customer’s real estate.

When a caveat is lodged, the interest must exist. You cannot lodge a caveat over title for an interest in the future.

Ok, I have a caveatable interest, how do I go about lodging a caveat?

Each State is slightly different, but most involve you lodging a form at their land and title office. The form requires you to complete the following information:

  1. The details of the property (including the title reference);
  2. Who the registered proprietor of the land is; and
  3. How you claim to have an interest in the land.

You must sign the form before a witness. This takes the form of a statutory declaration.

Naturally, given the seriousness of this, you should always obtain legal advice before lodging a caveat. There are grave consequences for signing a false declaration.

Help, a caveat has been lodged over my property!

If a caveat has been lodged over your property, you can seek to remove it through a lapsing notice. A lapsing notice is issued by the owner (registered proprietor) of a property, and must be served on the caveator (the person who lodged the caveat). If a person who has been served with a lapsing notice does not seek an order from the Supreme Court for an extension of the caveat, it will lapse.

If a party is successful in obtaining an extension of time, that order from the Court must be lodged with the Supreme Court.

If a caveat does lapse, it means it will be removed from the title and will not longer have an effect.

Conclusion

LegalVision has a team of highly competent dispute lawyers who can advise you about lodging and removing caveats over property. We can also advise you on inserting clauses within commercial contracts to create a caveatable interest.

Get in touch today for a fixed-fee quote.

Emma George

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