The purpose and function of a caveat is to preserve and protect the rights of a caveator over land that was used as security for a debt. The lodgement of a caveat means that the caveator’s interest cannot be defeated by the registration of a dealing in respect of land (for example relating to the transfer), without the caveator receiving notice and having the opportunity to seek the intervention of a court to protect its interest. The caveator’s interest may arise by reason of contract or operation of law.
When advising in respect of debt recovery methods, we consider whether a creditor has a caveatable interest that may be registered against land owned by a debtor. In some circumstances, the lodgment of a caveat by a creditor against the land of a debtor will provide the creditor with important protection and increase the likelihood of being able to recover the debt.
The law relating to the enforcement of caveats has been primarily created by courts hearing related disputes (rather than set out in statutes). In such circumstances the law is subject to change as new decisions extend, modify or further explain the grounds on which a caveat may (or may not) be maintained on a Certificate of Title.
Rowe Bristol Lawyers has extensive experience in respect of caveats, including when they are appropriate to be lodged and circumstances in which they ought to be removed.
The following classes of persons have been held by the courts to have had a caveatable interest enabling them to lodge a caveat over another person’s land:
- a purchaser under an agreement for the sale of land;
- a person having an option to purchase land;
- the grantee of an easement;
- a mortgagee;
- an equitable mortgagee;
- a lessee of a lease of land;
- as charge;
- the beneficiary of a trust, against land held by a trustee for the trust;
- the holder of an unregistered instrument;
- a person entitled to an annuity charged on the land;
- the grantee of a right to take from the land some natural product of it, such as peat, stone or timber, or to shoot game thereon, and to take it away for the grantee’s own benefit;
- a person having the right to a restrictive covenant running with the land; and
- a claimant who bases his or her claim upon the doctrine of resulting trusts.
If you require legal advice in relation to caveats, please contact us to arrange a meeting so that we may consider your specific circumstances.
The above information is provided as general information only and should not be relied upon as legal advice. The accuracy of this information may have changed from the date when it was published.