A caveat acts as formal notice or a warning that someone has a priority interest in a property.
Caveats are a complex area of civil litigation. Our Brisbane litigation lawyers have expertise in these types of disputes.
Aitken Whyte Lawyers can assist you to:
If someone has lodged a caveat over the title of your property, our lawyers can assist you to have it removed. We can achieve this either through negotiation or by applying to the Supreme Court.
We discuss each of these options below.
If you would like advice on lodging a caveat, our law firm can assist with that also.
We will first determine whether you have a caveatable interest in the property. This is important, as otherwise, the caveat can’t be maintained and is at risk of an adverse order.
See our article about lodging a caveat for more information.
It is imperative that you take immediate action to protect your rights. This applies whether you need to lodge a caveat to protect your interest in a property or remove a caveat.
Call us on 07 3229 4459 to speak to an experienced civil litigation lawyer.
If you own land in Queensland and someone has lodged a caveat over the land, this will generally prevent you:
This means you will likely not be able to sell your property while the caveat is in place.
These restrictions end if the caveat is withdrawn, removed, lapses, or is cancelled.
As the owner of the land, you are known as the “caveatee“. The person or entity putting the caveat on your property is known as the “caveator“.
The caveat is registered at the Titles Office. The Titles Office is also called the Department of Natural Resources and Mines, or DNRM.
To preserve the caveat where there is a dispute, the caveator (the person that lodged the caveat) must:
If the caveator does not complete both steps, the caveat will lapse. The Registrar of Titles may then remove or cancel the caveat from the property’s title.
In some instances, if a caveat is lodged with the owner’s consent, it may not lapse within 3 months from registration.
Without the leave of the court, the caveator is not permitted to lodge a similar caveat claiming the same interest in the same land:
If they do not take steps to maintain their caveat, they will not be able to simply lodge another.
There are steps you can take to have a caveat cancelled or removed without having to wait for it to lapse. Our lawyers can guide you through these as well as offer advice on the best option in your circumstances. These options include:
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:
The Registrar of Titles may then remove or cancel the caveat if the caveator does not, within 14 days:
Our solicitors can assist you to:
We have significant experience successfully giving notice to caveators to commence proceedings.
A more aggressive option that a caveatee has is to bring an application to the Supreme Court.
You can apply to the Supreme Court of Queensland for an order to remove the caveat. This can be done without giving the 14 days’ notice to the caveator.
A caveatee may apply even after the caveator has commenced Court proceedings.
The application to the Supreme Court is made under section 127 of the Land Title Act 1994 (Qld). This section states:
“(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.”Section 127 of the Land Title Act 1994 (Qld)
Our lawyers have run many Court applications to have caveats removed. Some examples include:
When a caveatee applies to Court to remove a caveat, the caveator bears the onus to demonstrate:
A caveator must demonstrate that they have a genuine arguable case. To do this, they must show that they have an interest in the land the subject of the caveat.
A 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.
The Land Title Practice Manual (Queensland) sets out practices for preparing titles forms. It details some past cases where the caveator could not prove a caveatable interest. These include the following:
This is the next step if the caveator can establish that it has a caveatable interest in the property. Following this, the Court will consider whether the balance of convenience supports removal.
Many different factors can affect the balance of convenience. Some common factors the Court will consider in a balance of convenience argument are:
Following an application to remove a caveat, the Court will usually make an Order about costs.
If the caveat is removed, the caveator will likely have to pay the costs of the caveatee who applied to the Court.
Such a costs Order could have a big effect on the caveator and even influence the outcome of the litigation.
If a costs Order is not paid by the caveator, there are further strategies that we can advise on, such as:
If you own a property that has been caveated and you want the caveat removed, we can assist.
Please contact us for legal advice on the best way forward in your circumstances.
Our solicitors can also assist if you are looking to put a caveat on a property to protect your interests.
It’s essential you have experienced solicitors when dealing with:
Our lawyers are experienced in dispute resolution. We can advise you on the best way to negotiate or mediate a favourable outcome. In the event this does not resolve your property dispute, we will take all action to reach a resolution. Whether you need to commence or defend Court proceedings, we can assist you to get the Orders you require.
Aitken Whyte Lawyers Brisbane can assist with:
Call us today to discuss your matter with a civil litigation lawyer.
Aitken Whyte Lawyers Brisbane
2/414 Upper Roma Street
Brisbane QLD 4000