What Happens after a Caveat is lodged?

  1. Notification:  Once the caveat has been lodged, the registered owner will receive a letter from the Department of Natural and Mines advising that the caveat has been registered. The titles office will send notices to each person whose interests are affected by the lodgement of the caveat.[1] The registered owner’s consent is not required for the lodgement of a caveat.
  2. Court Proceedings: Once the caveat has been lodged, court proceedings must be investigated to support your interest under the caveat.  These proceedings must be filed by you either:[2]
  • Within 3 months[3] from the date the caveat is lodged; or
  • Within 14 days[4] from receipt of a notice from the registered proprietor of the property under section 126 of the Land Title Act.

Once a caveat has been registered, and a Notice is not served by the registered owner as detailed above, then the caveat will remain in place, but only for three months. If property settlement matters are not resolved within that three month period, the only way to keep the caveat “alive” and registered against the property is to start Court proceedings for property settlement. Such proceedings must be commenced before three months have lapsed. Once that has taken place, the caveat will remain registered against the property indefinitely until both parties reach mutual agreement.

Removing a caveat[5]

Pursuant to s 127 of the Land Title Act 1994 or 389H of the Land Act 1994, a caveatee may apply at any time to the Supreme Court for an order that a caveat be removed. The caveat remains in force until the matter is determined by the court or the caveat is withdrawn.[6] A registered caveat may be withdrawn by the caveator by lodging a Form 14 – Request to Withdraw (s 125 of the Land Title Act 1994 or s 389G of the Land Act 1994). 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.[7]

Pursuant to s 128 of the Land Title Act 1994 or s 389I of the Land Act 1994, the Registrar may cancel a caveat upon receipt of a request to cancel if the Registrar is satisfied that:

• the interest claimed by the caveator has ceased or the claim to it has been abandoned or withdrawn; or

• the claim of the caveator has been settled by agreement or otherwise satisfied; or

• the nature of the interest claimed does not entitle the caveator to prevent registration of an instrument or document that has been lodged.

The Registrar must notify the caveator of the Registrar’s intention to cancel the caveat at least seven days before it is cancelled (s 128(2) of the Land Title Act 1994 or s 389I (3) of the Land Act 1994). If no response is received within seven days, the caveat will be cancelled. If an instrument or document that has been lodged will, on registration, give effect to the interest claimed in the caveat, the Registrar may remove the caveat immediately before registering the instrument (s 128(3) of the Land Title Act 1994 or document s 389I (4) of the Land Act 1994).

Lapsing a Caveat[8]

If the registrar is not satisfied that the caveator has an interest in the lot;[9] or is satisfied that any interest that the caveator has in the lot, has been extinguished under the Limitation of Actions Act 1974;[10] the registrar must provide the caveator a written notice, to require the caveator to start a proceeding to recover the lot in the Supreme Court within 6 months after the notice is given. The caveat would lapse unless, within the required time, the caveator starts a proceeding in the Supreme Court to recover the lot with a written notice;[11] in the way the registrar requires to the registrar.[12] The caveat also lapses if the proceeding is withdrawn or dismissed;[13] or judgement in the proceeding is given against the caveator and the time for appealing against the judgment expires without an appeal being lodged;[14] or if the judgment in the proceeding is given against the caveator and the judgment is appealed that the appeal is dismissed or withdrawn.[15]

When a caveat lapses, the Registrar may remove it from the register.[16]  Pursuant to s 126(1) of the Land Title Act 1994, a caveat will not lapse if it is lodged:  by the registered owner or if his/her consent is deposited when the caveat is lodged; pursuant to a court order mentioned in ss 122(1)(d) or (e) of the Land Title Act 1994; by the Registrar under s 17 of the Land Title Act 1994; or other than under Part 7, Division 2 of the Land Title Act 1994, a caveat lodged by an equitable mortgagee lapses, even if the consent of the registered proprietor was deposited at the time of lodgement.[17]

 

 

[1] Land Title Act 1994, ss 121.

[2] Land Title Act 1994, ss 126(2).

[3] Land Title Act 1994, ss 126(4)(a)(ii).

[4] Land Title Act 1994, ss 126(4)(a)(i).

[5] Land Title Practice Manual - Department of Natural Resources and Mines – accessed on 1st August 2016 – <https://www.dnrm.qld.gov.au/__data/assets/pdf_file/0003/97149/ltpm-part-11.pdf >.

[6] Land Title Act 1994, ss 127(1).

[7] Land Title Act 1994, ss 127(2).

[8] Land Title Act 1994, ss 126. Accessed on 1st August 2016 <http://www.onerfamilylaw.com.au/Sites/2251/Images%20Files/FLNA%20caveat%20article.pdf>

[9] Land Title Act 1994, ss 105(1)(a).

[10] Land Title Act 1994, ss 105(1)(b).

[11] Land Title Act 1994, ss 105(2)(a).

[12] Land Title Act 1994, ss 105(2)(b).

[13] Land Title Act 1994, ss 105(3)(a).

[14] Land Title Act 1994, ss 105(3)(b).

[15] Land Title Act 1994, ss 105(3)(c).

[16]  Land Title Act 1994, s 126(7).

[17] Circuit Finance Australia Ltd v Registrar of Titles [2005] QSC 283.

創作者介紹

眾律國際法律/專利商標事務所

Zoomlaw 發表在 痞客邦 PIXNET 留言(0) 人氣()