A caveat notifies other people that you have an interest in a property. This prevents others from dealing with the property without your consent. However, not everyone can lodge a caveat, you need to have a caveatable interest. Determining if you have a caveatable interest is explored below.
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How does a caveat work?
A caveat works to protect an interested party from being excluded from dealings related to the property. However, it also informs the Registrar-General of your interest. Once you have a caveat the Registrar-General will not register any dealings inconsistent with your interest with the exception of certain statutory exceptions.
There are two types of caveats, absolute and permissive. An absolute caveat prevents any further dealings with the property until the caveat is removed. However, a permissive caveat may allow further dealings with the property with the permission of the person who lodged the caveat.
How do you know if you have a caveatable interest?
There are three main caveatable interests which exist for a property.
- A purchaser’s interest under an agreement for sale;
- A vendor’s lien (right of a seller to repossess the property sold until the buyer makes all payments for the full purchase price.)
- A purchaser’s lien.
Examples of non-caveatable interests are:
- Possession of a building site by a contractor;
- Rights arising from an agreement to share profits on the resale of land.
Example
Chris and Samantha live on a property together. However the property is only registered under Samantha’s name. Over the past few years of living together Chris has contributed financially towards property renovation and maintenance. Therefore, Chris has a caveatable interest in the property.
Consequently Chris can lodge a caveat to protect his interest in the property. This can be through an absolute or permissive caveat.
How do you lodge a caveat?
In NSW, you lodge a caveat through the Land Registry Services. However, every state and territory in Australia has a differing office for registering caveats.
However, this can be a complex process and a mistake can result in losing a property so it’s important to use a property lawyer.
Conclusion
To reiterate, a caveat protects your interest in a property and prevents you being excluded from dealings related to the property. It is important to first determine whether you have a caveatable interest in a property before proceeding to lodge a caveat. The guide above provides a great place to start when trying to determine in you have a caveatable interest in the property. If you are attempting to obtain a caveat or are dealing with a caveat it is advisable to seek legal advice from a property lawyer or a conveyancing lawyer.
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