Do I need to lodge a caveat?

Date: Oct 30, 2015

Property law represents a complicated area of Australian law, and those having to work their way through some of the more complicated processes will no doubt understand the benefit of useful advice.

While speaking to a lawyer is always going to be the most useful approach, it's also a good idea to understand some of the terms. This article will take a closer look at what caveats are, how they can be lodged and whether or not they can be rejected.

What is a caveat?

Caveats are designed to protect unregistered interests in a Torrens Title property. They're a form of statutory injunction under the Real Property Act 1900. Once they have been registered on a title to property, they prevent the recording in the Register of any dealing affecting the interest specified in the caveat until the person lodging the caveat has had a chance to prove their claim.

They're sometimes lodged when contracts have been exchanged on a property, but there has as yet been no settlement. The person who is purchasing the home acquires something known as caveable interest, which means they can then register a caveat to protect their interest in the home.  Other examples might be an unregistered mortgage, or an interest of someone who is a beneficiary of a trust of the property.

How do I lodge a caveat?

These can be lodged at the NSW Land & Property Management Authority (LPI), although it is usually a good idea to have these prepared by a NSW lawyer, as they can ensure the interest is correctly specified and the caveat is lodged and registered properly.

Can caveats be rejected or lapse?

Even though you are able to lodge a caveat, there are circumstances in which the LPI may choose to reject it. For example, the reasons could be as simple as not supplying a reference to the title or an incorrect title, or the caveat does not claim an interest in the land.

If an Application for Preparation of Lapsing Notice is made, the caveat lapses or partially lapses 21 days after service of the notice on the caveator. The lapsing notice is prepared by LPI and it must be served on the caveator as required by the Real Property Act 1900. The caveator can prevent the caveat lapsing by lodging an Order made by the Supreme Court extending the caveat.

This is another reason to consider lodging a caveat with the help of a lawyer who understands the process.

Lodging a caveat with expert assistance

As with many other property matters, it's usually a good idea to speak with experts who understand the intricacies and important details.

To learn more about property law and the many facets of wills and estates, specifically with regards to NSW, don't hesitate to consult with professional lawyers with the skills and experience needed to give you the right advice.