Caveat on a property is difficult to identify. Once you get a search of the title to the property, it will set out details of the owner (referred to as the “registered proprietor”) on that document. The proprietor will be either an individual or a company or joint owners (registered either as tenants in common or joint tenants). The reference to “joint tenants” or “tenants in common” simply refers to different types of joint ownership in the property.
Removing a Caveat on a Property
If you want to remove the caveat, you will need to prepare a document known as a “section 138B Form”. Information about the form can be obtained on the Landgate website. If you want to look at details of the caveat, then you can also order a search from Landgate of the caveat. To do this, check the registration number of the caveat that will appear on the face of the title search.
If you apply to Landgate, they will issue a 21-day notice, calling on the caveator to remove the caveat within 21 days. However, you need to be wary. The issuing of a notice by Landgate to the caveator might trigger an expensive application to the Supreme Court. The caveator would be forced to take that step if he or she wants to keep their caveat lodged against your title. It may be in your interest to firstly get some legal advice about the effect of the caveat. You can then decide what steps might be taken. Do you want to remove the caveat, or try to resolve the claim on which the caveat is based?
Lodgement of a Caveat
If, on the other hand, you want to lodge a caveat, the necessary steps are more detailed. Firstly, you will generally need to establish that you have the type of interest that Landgate accepts as being “caveatable”. There are a number of claims that do not give you a right to lodge a caveat against the property. For example, obtaining a judgment in the Magistrates Court against a debtor will not give you the right to lodge a caveat against the debtor’s property. As an alternative, you might be able to obtain a Property seizure and sale order, but that’s for another blog. Further, if you do lodge a caveat and it is later removed by the property owner, you might be liable for the expenses of its removal. You could even be liable to pay compensatory damages if it was lodged without a reasonable cause. There will be more information on those matters in my next blog.
In my next blog, I will discuss “The lodgement of caveats – how to avoid doing it the wrong way”.
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