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NewsProperty LawThe importance of caveats in Queensland and their timing pitfalls

March 29, 20210
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A caveat is a legal document which, when registered on title, prevents the registration of any dealing affecting the interest claimed in the caveat by the Caveator until the caveat is withdrawn, removed, lapsed or is cancelled.

The purpose of a caveat sometimes can provide time for the parties to apply to a court to enforce or determine an interest in the caveated property.

A ‘Caveator’ means a person in whose favour the caveat is lodged.

A ‘Caveatee’ means a person who has an interest in the land over which the caveat is lodged over.

Who can lodge a caveat?

In Queensland, a caveat can be lodged on title by one of the following:

  • A person claiming an interest in a lot (which means land or property);
  • The registrar under section 17 of the Land Titles Act 1994 (Qld) who has powers to do so;
  • The registered owner of the lot to protect their interests possibly if someone is trying to sell the owners’ property;
  • A person to whom an Australian Court has ordered that an interest in a lot be transferred; or
  • A person who has the benefit of a subsisting order of an Australian court in restraining a registered proprietor from dealing with a lot (which means to sell usually).

In the event a person is claiming an interest in a lot by lodging a caveat, the Caveator must specify their interest in the lot by describing the interest in the actual caveat form. An interest can be defined to include:

  • A legal or equitable ownership in the land or other property; or
  • A right, power or privilege over, or in relation to, the land or other property.

What happens once the caveat is lodged?

Once the caveat is registered on title, a caveat will lapse within three (3) months after lodgement of the caveat, should certain steps to “secure” the caveat not be taken.

Alternatively, the caveat may lapse within fourteen (14) days after lodgement of the caveat instead if the Caveatee serves a notice on the Caveator requesting the Caveator to commence proceedings in a court of competent jurisdiction in order to establish the interest claimed under the caveat.

In order to avoid the caveat lapsing within either three (3) months or fourteen (14) days from notice, the Caveator must commence proceedings in a court of competent jurisdiction to establish the interest claimed in the caveat before the lapsing period and must provide notice to Land Titles confirming that proceedings have commenced.

Despite the above, a caveat lodged based on the below are exempt of lapsing:

  • The caveat was lodged by the registered owner; or
  • The consent of the registered owner is deposited with the caveat when lodged; or
  • An office copy of a court order (for either an interest in a lot be transferred or for restraining a registered proprietor from dealing with a lot) is deposited with the caveat when lodged; or
  • The caveat is lodged by the registrar under section 17 of the Land Titles Act 1994 (Qld); or
  • The caveat is lodged other than under division 2 of the Land Titles Act 1994 (Qld).

Once a caveat lapses, the caveat can be removed by any person who lodged a Request to Remove Lapsed Caveat at Land Titles.

Removal of caveat

In the event a caveat is registered and secured on title, the Caveatee may apply to the Supreme Court of Queensland for an order stating the caveat be removed from title.

Until such order is issued, the caveat will remain in force until it is withdrawn from title.

Registering a second caveat

If a caveat is lodged over a property, a further caveat by the same caveator and same grounds cannot be lodged. Even if the first caveat has long lapsed and removed from title, the further caveat cannot be lodged on the same grounds/interests.

In order to lodge a further caveat on title, leave of a court of competent jurisdiction to lodge the further caveat must be granted. Once received, the further caveat along with evidence of the court’s leave to lodge a further caveat can be lodged at Land Titles.

If you have any queries on lodging a caveat or have received a notice that a caveat has been registered on your property, please contact Stephanie Tran on (07) 3839 8011.

Article written by Stephanie Tran of our Brisbane Office.

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