To register a caveat over a parcel of land, you must either have a direct interest in the land or a contractual agreement that enables the lodgment of a caveat.
We prepare clauses for clients for inclusion in their contracts that allow them to lodge caveats over debtor’s properties in Western Australia.
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Caveats are a very effective method of securing loans and other debts. A caveat is a written warning that appears on the certificate of title of a property telling anyone who wants to deal with the property, that the person who lodged the caveat, has an interest in that property.
Lodging a caveat over a property prevents the owner of the property from selling, mortgaging or dealing with the property without your knowledge.
If someone owes you money, or you have a direct interest in the land in question, we can provide legal advice on whether you have the right to lodge a caveat over their property and arrange for the caveat to be lodged. This will then give you some security to ensure the debt is paid.
If someone has lodged a caveat over your property in Western Australia we provide legal advice on challenging the caveat and having it removed.
If someone has lodged a caveat over your property in Western Australia we provide legal advice on challenging the caveat and having it removed.
Almost always, there is an urgency with a caveat dispute. It is important that your lawyers have experience in caveat disputes.
If you have had a caveat lodged over your property that you wish to have removed, then you need to take legal advice on this process as if you get it wrong it could expose you to a costs claim.
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. That is, if a caveat has been placed on a property without any legal foundation, then there is a procedure pursuant to Section 138B of the Transfer of Land Act to have a notice issued that can cause the removal of the caveat. These notices need to be very carefully prepared because the party receiving the notice will need to seek a court order to extend the caveat.
If the notice is issued when there is obviously a genuinely caveatable interest, in other words a proper caveat, that could expose the person issuing the notice to a costs claim in court.
If you have lodged a caveat on a title, you may receive a letter from the Registrar of Titles telling you that you have 21 days within which to obtain a Supreme Court order for the extension of the operation of that caveat.
We have dealt with these applications many times and can provide a fixed price for dealing with them. For more information on these applications click here.
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.
The section 138B procedure cannot be used in respect of caveats that are:
• lodged under sections 30, 176 or 223A of the TLA;
• under any other written law which specifically provides for the lodgement of a caveat;
• lodged by virtue of a Court Order;
• protecting beneficiaries under a will or settlement;
• lodged by or on behalf, or with the consent of the Minister for Lands;
• lodged under any Commonwealth Act; or
• lodged by the Registrar of Titles.
Below are some common mistakes made by caveators:
• 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?
