Litigation & Disputes

Caveats – Removing a Caveat over Your Property


Brisbane Lawyers

Aitken Whyte Lawyers Brisbane - Civil Litigation and Dispute Lawyers And Solicitors for Brisbane, QLD

What is a Caveat

A caveat acts as a formal notice or warning that someone has a priority interest in a property. Caveats are a complex area of civil litigation which our Brisbane litigation and disputes team of solicitors have particular expertise in.

If a caveat has been lodged over your property or land title Aitken Whyte Lawyers can assist you to have it removed either by negotiation or by applying to the Supreme Court for appropriate orders.

If you would like advice on lodging a caveat, our law firm can assist with that also. We can assist you in determining whether you have a caveatable interest in the property as otherwise, the caveat can’t be maintained and is at risk of an adverse order.

Whether you need to lodge or remove a caveat, it is imperative that you take immediate action to protect your rights. Call us on 07 3229 4459 to speak to an experienced solicitor who can act for you.

The Effect of a Caveat on Your Property

If you own land in Queensland, and someone has lodged a caveat over the land, you will generally be prevented from transferring or dealing with the land until the caveat is withdrawn, removed, lapses, or is cancelled. As the owner of the land, you are known as the caveatee and the person or entity putting the caveat on your property is known as the caveator.

The caveat is registered at the titles office (Department of Natural Resources and Mines - DNRM).

The caveator (person that lodged the caveat) must commence Court proceedings against you within 3 months, and give notice to the titles office of the Court proceedings, to preserve the caveat. If the caveator does not commence Court proceedings and notify the titles office, the caveat automatically lapses. The Registrar of Titles may then remove or cancel the caveat from the property’s title.

The caveator is not permitted to lodge a similar caveat, claiming the same interest on the same land again if it is cancelled, removed or lapses.

Caveat Cancelled or Removed Before it Lapses

There are steps our solicitors can assist you to take to have the caveat cancelled or removed without having to wait for it to lapse. These include:

  • Notice to Commence Court Proceedings

    Three months is a long time to wait for a caveator to commence Court proceedings.

    A caveatee (person who owns the land) can send a notice to the caveator demanding that the caveator commence any Court proceedings within 14 days, otherwise the caveat will lapse.

    If the caveator does not commence Court proceedings and notify the titles office within 14 days, the Registrar of Titles may then remove or cancel the caveat.

    Our solicitors can assist you to prepare and serve a notice on the caveator, and notify the register of titles that a notice has been served in the required form and timeframe.

  • Application to the Supreme Court

    A more aggressive option that a caveatee has is to apply to the Supreme Court of Queensland for an order to remove the caveat without giving the 14 days’ notice to the caveator. A caveatee may still apply to Court to remove the caveat after Court proceedings have been commenced by the caveator against the caveatee.

    The application to the Supreme Court is made under section 127 of the Land Title Act 1994 (Qld), which provides:

    • (1) A caveatee may at any time apply to the Supreme Court for an order that a caveat be removed.
    • (2) The Supreme Court may make the order whether or not the caveator has been served with the application, and may make the order on the terms it considers appropriate.

    Our firm has had success in the past assisting clients giving notice to caveators to commence proceedings, and with applications to the Supreme Court of Queensland to remove caveats.

    When a caveatee applies to Court to remove a caveat, the caveator bears the onus to demonstrate:

    1. a genuine arguable case; and
    2. that the balance of convenience favours the continuation of the caveat.

    Genuine Arguable Case

    To demonstrate a genuine arguable case, a caveator must show that it has an interest in the land the subject of the caveat. A simple debt owed by the owner of a property to the Plaintiff does not give the creditor a caveatable interest. The Court ought to remove such a caveat on an application by the caveatee.

    Some past cases where the caveator did not have a caveatable interest are set out in the Queensland Land Title Practice Manual as follows:

    1. A vendor’s lien for unpaid purchase money (s. 191 of the Land Title Act);
    2. A registered owner of land who seeks the appointment of statutory trustees for the sale of the land, once having executed a Form 1 – Transfer to Trustees and divested himself/herself of the legal estate, (Re Trapas Pty Ltd [1991] Q Conv R 54-398);
    3. An agreement to share in the profits on resale of land (developed with the use of funds lent by the caveator) in the absence of an intention to give the caveator security over the land for its loan did not confer on the caveator an interest sufficient to support a caveat (Simons v David Benge Motors Pty Ltd [1974] VR 585) [However, there is some case law to supporting the proposition that a partner in a partnership that owns land has a caveatable interest in the land];
    4. A mere application under s. 196 of the Property Law Act 1974 for relief where the caveator alleged that he mistakenly made improvements on the caveatee’s land was held not to be a sufficient interest to support a caveat (Ex parte Goodlet and Smith Investments Pty Ltd [1983] 2 Qd R 792);
    5. A mere right of pre-emption was held not to be a sufficient interest to support a caveat (Re Rutherford [1977] 1 NZLR 405);
    6. A beneficiary under a discretionary trust does not have an interest in land owned by the trust that will support a caveat (Walter v Registrar of Titles [2003] VSCA 122).

    Balance of Convenience Test

    If the caveator can establish that it has a caveatable interest in the property, the Court will then consider whether the balance of convenience supports the removal of the caveat.

    Many different factors can affect the balance of convenience. Some common factors that the Court will consider in a balance of convenience argument are:

    1. any undertaking as to damages offered by the caveator;
    2. any undertaking not to deal with the property offered by the caveatee;
    3. any other available security for the caveator apart from the property;
    4. the strength of the caveator’s claim against the caveatee;
    5. whether the caveatee is seeking to dispose of the property and those circumstances;
    6. whether other parties are affected by the caveat, for example, buyers of off the plan lots.

    Costs

    If the Court orders that the caveat be removed, it will likely award costs in favour of the caveatee that applied to Court for its removal. Such a costs order could have a big effect on the caveator and influence the outcome of the litigation as a whole.

    If a costs order is not paid by the caveator, there are further strategies that we can advise on, such as seeking a stay of the proceedings until the costs are paid, or applying for security for costs.

If you own a property that has been caveated, and you want the caveat removed, please contact us to discuss how we can assist you. Our solicitors can also assist if you are looking to put a caveat on property to protect your interests.

Focused on Results

It's essential you have experienced solicitors when dealing with disputes about caveats or property law. If mediation or negotiation does not result in a resolution of the property law dispute, our commercial litigation and dispute resolution team will commence or defend court proceedings where appropriate to get the orders you require.

Aitken Whyte Lawyers Brisbane can assist you with any disputes relating to caveats or any other property law dispute. Call today to discuss your matter.

Office Location and Contact Details

Brisbane
Aitken Whyte Lawyers
Level 2, 303 Adelaide Street, Brisbane
Ph: +617 3229 4459
Fax: +617 3211 9311
E: enquiries@awbrisbanelawyers.com.au


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