The statutory scheme regulating caveats is set out in the Real Property Act 1900 (“the Act”). A caveat is a dealing registered on a property’s title that prevents other registrations (eg a transfer of the property) from occurring that would affect the interest claimed under the caveat. Only a person who has a legal or equitable interest in the land can lodge a caveat. It may be the case that holding a mortgage over a property is registered as a caveat.
The crucial question in any caveat dispute is whether the party who lodged the caveat has a “caveatable interest” in the subject property, allowing them to lodge the caveat, or whether the right is merely contractual. In relation to mortgage matters, an assessment of this interest may be essential.
There can be severe ramifications for a party who lodges a caveat without having a caveatable interest including costs consequences and potential liability to pay compensation. This may occur for example if the sale of the property cannot proceed because of the caveat and the registered owner suffers penalty as a result of this delay.
A person has two options if they wish to remove a caveat from title:
1) Serve a lapsing notice; or
2) Seek a court order for removal of the caveat.
A caveat by a mortgagor may also be capable of removal if say the mortgage is discharged.
If you require assistance with setting aside or otherwise lodging a caveat, we recommend that you contact our office and arrange an appointment to see one of our Mortgage & Caveat Dispute Solicitors in our Sydney office. By appointment, we can also arrange a time for you to see one of our lawyers at a branch office. For a complete listing please see our "Locations" tab.
This webpage (and any material or wording appearing on this webpage) is provided for general information purposes only and does not constitute any Legal Advice. It does not take into account your objectives, your instructions or all of the relevant facts and/or circumstances. Navado accepts no responsibility to any person who relies on the information provided on this website. We further refer you to our Disclaimer.
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