A caveat is a notice that can be lodged with the Department of Natural Resources and Mines to prevent (with some exceptions) the registration of an instrument or document (such as a transfer or a lease) with respect to a property.
Caveats are often associated with a number of potentially dangerous misconceptions, including;
If someone owes you money you can lodge a caveat over their home
Wrong
You only have a basis for lodging a caveat over a property if you have what is called a “caveatable interest” in the property. The fact that someone owes you money generally does not give you a caveatable interest. Common examples of caveatable interests include:
- The interest of a purchaser under a Contract of sale;
- The interest of a person that is granted the right to purchase a property under an option agreement.
This is not an exhaustive list of caveatable interests and whether or not you have a caveatable interest is something that needs to be considered very carefully.
A caveat will only ever cost you a registration fee
Wrong
If you lodge a caveat over a property without having a “caveatable interest”, you are at risk of having to pay compensation to anyone who suffers loss or damage as a result of the lodgement of your caveat. An example of where serious loss can arise is where:
- a person improperly lodges a caveat over someone’s property (which is subject to contract);
- the caveat prevents the property owner from being able to settle the contract;
- the buyer terminates the contract and sues the seller for breaching the contract; and/or
- when the seller puts the property back on the market it can only be sold at a reduced price.
A caveat will protect your rights indefinitely.
Wrong
Once a caveat lapses, your interests are no longer protected. A caveat will lapse for a number of reasons, including:
- The property owner serves on a notice on you that requires you to commence court proceedings to establish the interest claimed under your caveat and you fail to do so with 14 days of service of the notice; or
- The property owner does not give you a notice, but you fail to commence proceedings to establish the interest claimed under your caveat within three months of lodgement.
Commencing legal court proceedings (or defending court proceedings commenced by the property owner) has serious cost implications and you should keep this in mind before lodging a caveat.
The risks associated with caveats mean that if you need to lodge one, you need to make sure it is done properly and according to the law the first time. Our Commercial Lawyers can assist you to determine whether you have a caveatable interest.Our Lawyers will offer legal advice and assist you to prepare and lodge a caveat and to commence proceedings in the Supreme Court to enforce your caveat. For any queries, please contact our Cairns office for legal advice office on 07 4052 0700.