Removal of a caveat

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When purchasing property, it is essential to understand all relevant legal terms, including the definition, effect and removal of a caveat. This Legal Kitz blog will assist you by providing any information you need to know about a caveat.

What is a caveat?

A caveat is a type of statutory injunction which prevents the registration of dealings on a particular property. The party who lodges the caveat is known as the caveator. The owner of the land on which the caveat is placed is known as the caveatee. By lodging a caveat, the caveator registers a formal notice to the public that there is priority interest on the property. 

What is the effect of lodging a caveat on your property?

If you own land in Queensland and someone has lodged a caveat over the land, this will generally prevent you from:

  • Transferring the land; or
  • Dealing with land in general.

With a caveat in place, this means you will likely not be able to sell your property. 

How do I to remove a caveat?

Landowners will often wish to remove a caveat placed on their title if they believe there is no basis for the lodged caveat. The removal of a caveat from a property has different processes and procedures for different Australian states and territories. This article explains the four methods which one can utilise to withdraw a caveat in Queensland: 

  1. Lapsing;
  2. Applying to the Supreme Court;
  3. Registrar’s cancellation; or
  4. Caveator Withdrawal.

Lapsing 

The first method to withdraw a caveat is by lapsing. In Queensland, a caveat is classified as either lapsing or non-lapsing. Under Queensland state laws, non-lapsing caveats are those that are lodged:

  • By the registered owner;
  • With the consent of the registered owner;
  • With a court order; or
  • By the registrar of land titles.

The Registrar of Land Titles (Titles Queensland) is a government organisation that manages land and water titles registry in Queensland. 

Caveats which do not fall under the above categories are known as lapsing caveats. This means they are automatically removed from the land title once they have lapsed, occurring three months after the caveator lodges the caveat. If the caveator wishes for the caveat to remain on the title, they must begin court proceedings. 

If you wish to lapse a caveat earlier than three months, you can serve notice to the caveator. This will act as a notice to the caveator that they must commence legal proceedings within 14 days to prove why the caveat should remain on the land title. You should also notify the registrar of land titles that you have served this notice. If the caveator is unsuccessful in proving why the caveat should remain, then the caveat will lapse and you can request its removal by the registrar. 

Application the the Supreme Court

If you chose not to serve a lapsing notice, you can alternatively apply to the Queensland Supreme Court for an order to remove a caveat. This application can be made regardless of whether or not the caveator has been formally served with the removal application. In this case, the court then has the authority to determine the outcome of the removal order. 

An application for removal of a caveat should be lodged to the Supreme Court if:

  • The caveator cannot be located;
  • The caveator has since deceased; or 
  • You are unaware of who the caveator is.

Cancellation by the registrar 

Another option for removal of a caveat is for the Registrar of Land Titles to cancel the caveat. For this option, you must lodge a request to cancel the caveat with the registrar. The caveat will be successfully withdrawn if the registrar is satisfied that the:

  • Interest of the existing caveat had ceased, been abandoned or withdrawn;
  • Caveat claim has been settled by agreement or otherwise satisfied; or 
  • Nature of the issue does not entitle the caveator to prevent another lodged registration. 

The registrar must then notify the caveator of the cancellation at least seven days before cancelling the caveat. 

Withdrawal by caveator 

The last option for removing a caveat is for the caveator to lodge a withdrawal of caveat request with the Registrar of Land Titles. This may result by negotiating a settlement with the caveator. Aside from lapsing, this is often the quickest and most cost-effective method to resolve a caveat dispute.

Legal advice

If you need assistance with removing a caveat, our legal team can help point you in the right direction. We offer a FREE 30-minute consultation for any legal queries. Book here now.

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