Are you looking to buy an investment property or a new home?
If so, deciding whether to lodge a caveat with the Land Titles Office of the state in your land is located should be one of the key considerations.
A caveat can protect you from adverse claims by third parties and assist secure title against any potential disclosure issues associated with buying a property.
In this blog post, we’ll cover what caveats are, when it might be useful to place one on your land purchase, and how they work in practice.
We’ll also discuss the fees associated with the withdrawal of a caveat and how that takes place
Read on for essential insights into why investing in registered legal protection could prove invaluable down the road!
One of the problems with the law is that it can be quite complex for everyday people to understand.
There is a lot of legal jargon that only lawyers seem to understand.
But we all need to understand different laws and especially within the real estate realm given it’s so highly regulated.
In a literal sense, a caveat means a “warning”.
A caveat is a legal notice that is placed on the property's title, which alerts other parties that you have an interest in the property - even though you don’t actually own it yet.
This is sometimes called an “unregistered interest.”
The person lodging the caveat (the caveator) will provide details of their claim and means for them to be formally contacted in connection with the caveat.
The relevant government body will then notify anyone with an interest in the property who is affected by the caveat.
So what does having an “interest” in property actually mean?
Basically, it means that someone else has an interest in the property, which usually is some relation between the debt and the property or they have an equity interest in it.
The lodging of a caveat over a property is a way of telling anyone who wants to deal with the property to be aware of the fact that someone else’s interest already has priority.
In other words, a caveat is a written warning to anyone who checks the Certificate of Title of the property that the person who lodged the caveat has an interest in it.
The Registrar of Titles cannot deal with the property without first notifying the caveator.
There are a few situations in which it may be advisable to lodge a caveat on a property you are buying.
One such situation is if you have made a deposit on the property, but the sale has not yet been finalized.
Lodging a caveat can help protect your deposit and ensure that the property cannot be sold to anyone else without your knowledge or consent.
Another reason to lodge a caveat is if you have entered into a contract to purchase the property, but the sale has not yet been completed.
In this case, a caveat can help protect your interests in the property and ensure that it cannot be sold to someone else without your knowledge or consent.
When a buyer signs a contract to purchase real estate, he or she acquires what is known as a “caveatable interest”.
This means that the purchaser is entitled to register a caveat to protect that interest.
While it can be difficult to define, there are a number of people who might lodge a caveat on a property.
However, a caveat could be lodged by any of the following:
- A person with an equitable interest in the land under a contract of sale;
- A seller of the land who has received part of the installments for the purchase price, but is no longer the registered owner;
- A purchaser who is paying the purchase price in installments, but is not the registered owner;
- A person with a right of access to the land (e.g. by an unregistered easement);
- A tenant under an unregistered lease;
- Someone who has also signed the contract to buy the property – this is often a mistake made by two real estate agents;
- A creditor who wants to prevent the seller from disposing of the property.
- Equitable mortgagee;
- A partner;
- The beneficiary under a trust;
- A victim of fraud.
It’s vitally important to understand that 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.
Likewise, with any real estate transaction, it is best to have the caveat lodged by a lawyer so that advice can be obtained as to whether a caveatable interest actually exists, whether there are any contractual prohibitions on the lodging of a caveat, and whether further registrations to be made on the caveator’s behalf may be affected (a carelessly lodged caveat could prevent a purchaser’s own Transfer of Land from being registered or cause a lender to refuse to provide funds on settlement day).
However, it is important to note that lodging a caveat can also have negative consequences.
For example, if you lodge a caveat on a property that you do not ultimately end up purchasing, it can be difficult to have the caveat removed.
This could lead to legal disputes and may even result in financial penalties.
While there are a number of people who might have the right to lodge a caveat on a property, many people do not.
It is a common misconception that any creditor can caveat a debtor’s property to secure the repayment of a debt.
However, this results in many creditors exposing themselves to considerable risks in cost penalties because they have registered a caveat without necessarily having a caveatable interest.
A caveat is merely a notice of claim which may or may not be a valid one.
The validity of the claim must be determined at some stage.
There are two main procedures to remove a caveat and in each case, a caveator must be prepared to incur considerable expense to prove their interest in the property if they do not want the caveat to be removed.
- Removal by Application to the Registrar General
- Removal by Order of the Supreme Court
In both instances, the caveator will be obliged to commence court proceedings or defend proceedings to prove their caveatable interest.
The costs of these court proceedings will usually follow the event, which effectively means that if you are unsuccessful in proving a caveatable interest the costs will be claimed from you.
This has the potential to mean you’re liable to pay costs in the tens of thousands of dollars.
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Even if you have a caveatable interest, it is also important to understand that in most cases, you may only ever caveat a property for that particular interest once.
If that caveat is removed as a result of a caveator’s failure to prove their interest, they have no further opportunity to caveat the property for the same interest.
It’s also important to understand the timing of the lodgment of a caveat and whether to lodge one or not.
If you are buying property, for example, and the owner has accidentally accepted two different offers, then the person who lodges the caveat first is likely to end up being the legal owner.
Of course, as with any type of legal document, there are a number of fees which need to be paid to the local state government department.
The amount you pay is dependent upon the state you live in, and whether you’re lodging or withdrawing the caveat for one or multiple properties.
In NSW, VIC, WA, SA, and QLD it costs the same to withdraw and/or lodge a caveat.
For a single property, the fees differ for each state and are as follows:
However, in TAS, NT, and the ACT, the lodging and withdrawal fees for caveats differ as follows:
- ACT: $304 lodgement fee, $155 withdrawal fee
- NT: $248 lodgement fee, $152 withdrawal fee
- Tas: $174.90 lodgement fee, $138.51 withdrawal fee
There are also additional legal fees if you decide to use a lawyer to lodge a caveat on your behalf, which can be more than $100 depending on where you lodge.
The process of lodging a caveat on a property is the same in each state.
As with making any legal decision, it is always advisable to seek legal advice before embarking on the process to lodge a caveat.
Here are the three steps to lodging a caveat on a property:
Step 1: Engage a solicitor or conveyancer to prepare a caveat for electronic lodgment, or download and complete the caveat form and relevant exception form in hard copy.
Step 2: Lodge caveat and relevant exception form and pay the relevant fees.
Step 3: The caveat is processed and if successful is recorded against the title of the register and the applicant and registered proprietor are notified.
When a caveat is lodged on a property it prevents the registered owner from selling it for a specified period of time from the start of the caveat on the property.
Again, it’s vitally important that only people with an actual interest in a property should lodge a caveat.
This is because a caveat without any merit can mean the registered owner is entitled to compensation if they suffer any losses as a result.
Until it is withdrawn, removed, or otherwise extinguished, a caveat remains in effect.
The Land Titles Office cannot register any transactions involving land while a caveat is still in force.
A caveat can be withdrawn at any time by the caveator by simply filling out the necessary forms and paying the associated fees.
There are a number of ways that a caveat can be withdrawn.
The most common way is through a Lapsing Notice, which is issued by the owner of the property and then served on the person/party who has lodged the caveat.
The caveator then has a set period of time from the date of service to seek an order from the Supreme Court for an order extending the operation of the caveat.
If an order is granted, it must be lodged with the LPI before a specified period of time is up.
If no steps are taken by the caveator, the caveat will lapse, that is, it will fall off the title.
How do you know if you have a caveat on your property?
Under section 138 of the Transfer of Land Act, the Registrar of Titles has to notify the registered proprietor of a property if or when a caveat is lodged on their title.
This is usually sent via post to the address of the property.
Alternatively, you can do a title search on your property to check whether any caveat is in place.
How long does a caveat on a house last for?
In most states, the caveat will remain on the title indefinitely until it is removed or withdrawn.
Сan a caveat stop a property sale?
When a caveat is lodged, it restricts any action on the property until it is removed.
This includes selling, transferring, or even further encumbering the property.
Property owners are not prohibited from drawing on any existing mortgage or security against their property by a caveat.
Put simply, a caveat can stop a property sale by making the property settlement impossible to complete.
Note: In general, it is a good idea to speak with a lawyer before deciding whether or not to lodge a caveat on a property you are buying in Australia.
A lawyer can help you understand the potential risks and benefits of lodging a caveat and can advise you on the best course of action for your specific situation.
Overall, while lodging a caveat can provide some protection for your interests in a property, it is important to carefully consider the potential risks and benefits before making a decision.
*The information provided in this article is general in nature and does not constitute personal financial advice. The information has been prepared without taking into account your personal objectives, financial situation, or needs. Before acting on any information you should consider the appropriateness of the information with regard to your objectives, financial situation, and needs.