What Is a Caveat? Do I Need One?

by | Dec 22, 2020 | Conveyancing & Property

Caveats are used to protect your interest in property and acts as a statutory injunction to prevent certain dealings from being registered.  A caveat acts a warning to anyone dealing with the land that someone has a legal interest in that property.

The party who has the interest in the property and lodges the caveat is known as the caveator.

When Should a Caveat Be Used?

A caveator must have a caveatable interest in the property to be able to register a caveat.  Examples of a caveatable interest are:

  • An equitable interest including an equitable lease or an equitable mortgage;
  • A person who has signed a contract of sale for the purchase of the property;
  • An option to purchase the property in the future;
  • An interest under a resulting trust;
  • An easement or encumbrance;
  • Under a ‘charging clause’ in a contract or agreement; or
  • In some circumstances where you have contributed to the purchase price of a property or contributed to the improvement of the property.

If you lodge a caveat against property without a caveatable interest, the caveat can be removed and you may be required to pay costs or pay compensation to any person who suffers a loss as a result of the caveat.

I Have a Caveatable Interest.  How Do I Lodge a Caveat?

Lodging a caveat is done through Land Victoria and can be a complex process.  Therefore it is recommended to seek legal advice or assistance.

How Can You Remove a Caveat?

There are several ways that a caveat can be removed:

Automatically

A caveat will be automatically removed should its ownership be transferred to the caveator (eg: if a purchaser has registered the caveat, it will be removed once the purchase is complete the change of ownership is registered).

Application to Land Victoria

If you are the caveator, you can lodge a Withdrawal of Caveat with Land Victoria for its removal.  An owner of property can also apply to Land Victoria under the Transfer of Land Act 1958 to remove the caveat.  In this situation, the caveator has 30 days to dispute the removal before the caveat lapses.

Application to the Supreme Court of Victoria

If you have been adversely affected by a caveat, you may be able to take action in the Supreme Court against the caveator for the removal of the caveat.

How Can Nevett Ford Assist?

When dealing with caveats or caveatable interests, you should always seek legal advice.  Nevett Ford is able to provide legal advice regarding the lodging and removal of caveats and we can be contacted on 03 9614 7111 or email us at melbourne@nevettford.com.au.