Defective Caveats and Removing Caveats

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Tuesday, December 1, 2020

It is important to ensure that you follow the strict legislative requirements when lodging a caveat over property in Western Australia. Otherwise, the caveat may be ineffective in protecting your interest in land and may be challenged.   You should always take legal advice from lawyers experienced with caveats and securities generally. See also Caveats over Properties.

Our practice is located outside of the Perth CBD and because of this our hourly rates and fixed prices for commercial work and for litigation are 20% lower than the standard rates charged by most Perth law firms.  Our rates are extremely competitive compared to the rates charged by other commercial law firms. 

What is a caveat?

A caveat is a notice registered on a certificate of title. A caveat can prevent buying, selling, registering a mortgage and other dealings.

Who can lodge a caveat?

All people and most companies can lodge a caveat.

Lodging a caveat

There are strict legislative requirements that must be followed to lodge a valid caveat. In Western Australia the, caveator must:

  • Have a caveatable interest; and

  • Comply with formal requirements.

Caveatable interests

Caveatable interests are interests in the land over which the caveat is lodged, and does not extend to personal or purely contractual interests. For example:

  • An interest as purchaser under an agreement for sale;

  • An equitable mortgage;

  • An unregistered mortgages; and

  • An easement

Removing a caveat

In cases where it is clear that the caveator has no caveatable interest in the land, the owner of the land may apply to Landgate to remove the caveat.  For more information on the removal of caveats - click here.

Protecting a caveat through Court Proceedings

In Perth, caveats do not lapse except as a result of a Registrar’s notice. This is where the Registrar gives notice to the caveator after an application is made to Landgate for the notice to be issued.

The Registrar’s notice will require the caveator to commence proceedings to protect and substantiate their caveat within 14 days. If the caveator fails to do so, the caveat will lapse.

 

Common mistakes made by caveators

Below are some common mistakes made by caveators:

  • Have you paid the stamp duty with specific regard to the interest you seek to protect?

  • Has the description of land been accurately described including whether or not the caveat relates to the whole or part of the land?

  • Are you aware of the different time limitations for lapsing caveats in Western Australia?

  • Are you the buyer of the premises where the sale of business and premises are under separate contracts?

  • Are you contractually bound not to lodge a caveat?

  • If the title or interest in the land is jointly acquired, have both parties lodged a caveat?

  • Have you prepared appropriate supporting material for proceedings in a timely manner so as to protect the caveat or to resist an application for removal?

Aherns Lawyers provides legal advice on all caveat matters including the removal of caveats.

Liability limited by a scheme approved under Professional Standards Legislation.

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