What Is A Caveat & How Long Does It Last In Australia?

If you’re buying a property or house, you might discover it’s on a caveat. Or, as a property owner, you might learn that someone has lodged a caveat against your property. And if you’re reading this article chances are you’re wondering what exactly a caveat is.

A caveat is a formal notice, often filed with a public records office, to alert any other interested parties that someone already has a claim or right in a piece of property. This notice serves to protect the claimant’s interest by preventing the registration of any conflicting interests without the claimant’s consent.

If you’re looking to lodge a caveat, it needs to be done on the basis of a “caveatable interest” meaning that there are specific situations where a caveat is far more likely to be approved. Knowing these situations and how to properly file a caveat is key to improving your chances of a caveat being approved. If you’re looking to file a caveat or dispute one, the expert property lawyers at Aditum Lawyers can help, contact us to talk about your situation today, or keep reading to find out more.

What Is A Caveat In Australia?

The Real Property Act 1900 explains the legality surrounding caveats. Simply put, a caveat is a form of warning or notice showing a party’s interest in a specified property. This statutory injunction prevents other parties from making conflicting interests or advances on the caveated property. 

Common Uses Of Caveats In Australia

A caveat helps prevent fraud on unencumbered land by preventing other parties from making land title lodgements.  It can also offer protection to buyers by showing their interest in the land/property before the seller transfers the title to them. 

Other common uses of caveats in Australia include:

  • Lenders can lodge a caveat on a title to show their financial interest and use it as a loan security. 
  • To register a delimitation plan on a property.
  • Protect interests on your property, such as mortgages or leases.

How To Lodge A Caveat 

A caveator (the party applying for a caveat) must show proof that they’ve got a “caveatable interest” in a title for the application to be successful. It’s also essential to note that lodging a caveat without a justifiable reason can cause legal implications. Therefore, you should consult a legal expert before starting the process. 

That said, a caveator must prove a legal or equitable interest in the property when lodging a caveat. A legal interest might include an agreement with the owner to buy the land, to use it as security for a loan or commercial agreement, or other enforceable right. 

Equitable interest is where a party has a certain interest, though they lack the legal title of the property. An example is when someone buys a property but hasn’t received the title under their name. 

When lodging a caveat, consult a legal expert to help in the process. The lawyer can help establish your equitable or legal interest in a property and apply for the caveat. 

Caveat Legislation In Australia 

Each state and territory in Australia has specified offices and legislation that outline the caveat lodging process and the laws surrounding caveats. Below is the information on caveat legislation in each Australian state and territory: 

How Long Does a Caveat Last? 

The duration a caveat lasts in Australia varies by state and territory. For example, the caveat is valid for 21 days in New South Wales before it lapses. However, a caveator can lodge an order requesting the NSW Land Registry Service to extend the caveat’s validity. Usually, the caveat lasts until it’s removed or withdrawn. 

How Do You Remove A Caveat? 

What are your options if you receive a caveat on your registered property? You can remove the caveat in various ways. You’ll need expert legal advice to assist in the process, ensuring you follow the right procedures. Below are ways to remove a caveat in Australia:

  • Caveator’s withdrawal: The easiest way to remove a caveat is to request the caveator to withdraw the notice. 
  • Send a filled & signed (by you and the caveator) withdrawal of caveat form to the land registry. 
  • Lodging a court order 
  • Send an application to the Supreme Court requesting the removal of the caveat. You must have viable reasons justifying the removal.

Risks For Improperly Lodging A Caveat 

You should only lodge a caveat if you believe you have an equitable or legal interest in the property. The land register may reject the application if you lodge the caveat without a caveatable interest. 

Further, you might be ordered to pay for damages/losses that the property owner or involved parties might have incurred due to your improper caveat. 

Talk To Aditum Lawyers For Help With Caveats In Australia 

Aditum Lawyers are highly experienced in helping you properly lodge a caveat on a property/land. We can also offer expert advice if you’ve received a caveat on your property. 

Our team of expert property lawyers has years of expertise in dealing with property-related issues and disputes. Book a free consultation today, and let us help you deal with caveats in your state/territory the right way!

Resources & Further Reading 

  1. https://www.accesscanberra.act.gov.au/building-and-property/land-title-lodgements.
  2. https://districtcourt.nsw.gov.au/documents/forms/Land_as_security_fact_sheet_v1_June_2023.pdf
  3. https://legislation.nsw.gov.au/view/whole/html/inforce/current/act-1900-025

Disclaimer: The information provided in this article is for general informational purposes only and should not be construed as legal advice. Consult with a qualified commercial lawyer for personalised advice regarding your specific situation.