by Nigel  08/12/2020  0 Page Views
0 Comments  Commercial law, litigation, contracts, IP, property law

If you’re thinking about lodging a caveat on a particular piece of land that you have an interest in, you’ll want to be sure you know what you’re getting into. Having an interest in a specific piece of land may mean that you don’t want the owner to sell it. 

 

We’ll be taking you through what a caveat is and the types of situations that they can be quite beneficial. Then we’ll break down the steps on how to put a caveat on a property and the types of documents that you’ll need to fill out as part of your application. 

What is a caveat?

Quite simply, a caveat is a red flag that you need to be aware of when looking at a potential property. It stems from a Latin word that roughly means “warning”. You’ll find that when it’s used in a property context, it’s often used to represent a formal warning that’s been placed on the land’s title. Primarily, a caveat is lodged in order to protect the rights of the caveator. 

 

If you’re out on the property market searching for properties, a caveat demonstrates that the person who lodged a caveat on the title of the land has a noticeable interest. The main implications of this for you or any other parties is that the land cannot be dealt with at all until the court or the person who lodged the caveat removes it.

 

Can I lodge a caveat? 

One thing that you must remember is that not everyone has the right to lodge a caveat. In order to lodge a caveat on a property, you are required to possess what is referred to as a “caveatable interest”. This caveatable interest comes from if you have an equitable or legal interest in the land at stake. 

 

Some of the types of situations where this caveatable interest is applicable includes: 

 

  • Mortgagees 
  • A lessee of a lease of land 
  • A party who is set to receive a segment of the proceeds of the land at stake after it has been sold
  • A person having an option to purchase the property
  • The beneficiary of a trust, against land held by a particular trustee for the trust
  • A purchaser under an agreement 
  • A person who has the right to a restrictive covenant running with the land

 

What happens if I don’t have a caveatable interest?

In the case that there is no equitable or legal interest in the property, you may not have a caveatable interest that you can pursue. Even if you have a court judgment against a particular individual for a debt, this does not directly mean that you will be able to place a caveat on a piece of land that the person has ownership of. 

 

You’ll need to make sure that you’re supporting a caveatable interest by providing supporting documents and records of conversations with those involved. If you’re planning on making an application for a caveat without any caveatable interest, the owner of the property has the right to apply to lapse the caveat at hand. This is what is referred to as providing a lapsing notice. 

 

Upon receiving a lapsing notice, you should be given an exact amount of time in order for you to justify to the court why your lodging of the caveat is necessary. If you do not give the court this application of justification the caveat will lapse. After a court hearing, if the court then finds that your justification is not sound evidence, you may have to cover the other party’s legal costs in the case. 

 

It’s extremely important to make sure that you know whether or not you have a caveatable interest in the land.

What do I need to lodge a caveat?

Once you are certain of your caveatable interest, you can then get to work on lodging the caveat. There are a number of aspects and documents to remember to make the lodging process more smooth. The Transfer of Land Act 1893 (WA) (the Act) and Landgate governs caveats in Western Australia. 

 

The things you need for your caveat are:

  • Caveat forms C1/C3/C4
  • Title Search (not essential but still recommended)
  • Verification of the ID statement issued by the Australia Post 
  • Copy of all evidence to support the caveat claim as stated in the caveat
  • Registration fees payable to Landgate

 

You can find these caveat forms on the Landgate website or acquire them in person from the Landgate office. 

 

Who can sign the caveat?

You’ll need to have the caveat signed by: 

  • The creator of the caveat
  • The caveator’s solicitor, who is signing as their solicitor 
  • A fully licensed real estate agent, signing as an agent of the caveator 
  • A principal a settlement service 
  • A caveator company 
  • The attorney for the creator of the caveat 
  • The attorney of a bank who is lodging a caveat

 

Evidence to support the claim

If a claim comes from a specific deed or document, you must lodge a verified signed copy of this as a form of support for the caveat. If the claim is not provided in a deed or document, a statutory declaration must be acquired instead. 

 

This declaration must include the nature of the estate and the interest claimed, and the title to the estate or interest claimed. If you lodge a claim for a caveat without the correct supporting evidence, or if the evidence provided is not of a high enough standard to support the claim, a notice of requisition will be filed under s.137 of the TLA. This will request sufficient evidence within seven days of the date of the requisition notice. 

 

Legal Assistance 

Lodging a caveat on a property can become quite a nuanced process, so it’s best to get the help of a caveat lawyer in Perth. They can help to walk you through the process, ensure that you have sound evidence to support your claim so that you may be successful with lodging the caveat on the land. 



DISCLAIMER: 

The contents of this blog are not intended to be sound substitutes for legal advice. You should not rely on this information as legal advice and instead should always speak to an accredited lawyer for professional advice on your situation.