Although it is relatively simple to lodge a caveat in a form acceptable to Landgate, there are a number of issues that need to be considered.

Failure to consider carefully may result in:

  • the lodgement of a caveat that does not protect the caveator’s interest or which is not even accepted by Landgate;
  • a liability to pay costs if a caveat was lodged without having a caveatable interest.

Landgate does not make a determination as to whether the caveator has a ‘caveatable interest’.  Such questions will only become relevant if the caveat is challenged.

What is a Caveat?

Caveats place a ‘freeze’ on other dealings with the title to land until the matter the subject of the caveat has been resolved.

The earlier you lodge your caveat, the better your right over the land is in terms of priority. If any mortgage or any other caveats are lodged after you lodge your caveat, your interests will be dealt with first; but if you lodge a caveat after another security is lodged over the title, then the other security holder has a right in relation to the land before you do.

When is a Caveat lodged?

A Caveat is lodged with the land authority and reflected on a certificate of title to prevent certain dealings in the land.  It will notify the public of the caveator’s interest that affects the land as any caveats that have been lodged will appear on a certificate of title search.

The caveat itself does not create an interest, but it can protect an interest.  It should only be lodged where the caveator has an underlying interest called a caveatable interest that is sufficient to support the lodgement of a caveat.

What supporting documentation is required?

Any caveat lodged must be supported with a statutory declaration which will set out the nature of the caveatable interest being claimed. This statutory declaration will also allow the caveator to annex any relevant evidence supporting the existence of a caveatable interest.

 

Obtain Legal Advice

Landgate has a simple process for the preparation, lodgement and acceptance of caveats.  As a result, caveats are commonly lodged against titles to land without the lodging party obtaining legal advice.

 

However, once a caveat is lodged, the owner of the land will be notified. If the owner disputes the right of the caveator to lodge a caveat, they may issue a 21 day notice to the caveator requiring the caveator to prove their rights to lodge the caveat by bringing a claim in the Supreme Court of Western Australia.

 

The Supreme Court can decide whether you do or you don’t have a caveatable interest. This is why it is important to receive legal advice in relation to your Caveat before lodging it with Landgate.

 

If you believe that you may have a caveatable interest, please don’t hesitate to contact us for further advice.
Bruce Havilah

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