Useful Resources

Caveats - removing them

What is a Caveat?

A caveat is a notice at large that is recorded on the title of real property to protect the interest which the someone (the lodger/ caveator) may have on the real property. Any third party who may seek to deal with the real property is placed on notice about the caveator’s claim by the existence of the caveat.

If someone has placed a caveat on your property – call me today! Time is of the essence.

I can assist you to have it removed either by negotiation or by applying to the Supreme Court for appropriate orders.

If you would like advice on lodging a caveat, I can assist you with that also.

It’s vital that I assess for you if you have a caveatable interest in the property as otherwise, the caveat can’t be maintained and you will be at risk of an adverse order.

It is imperative that you take immediate action to protect your rights. Call me on xxxxx to speak to me today.

The Effect of a Caveat on Your Property

If you own land in Queensland, and someone has placed a caveat over your land, you will generally be prevented from transferring or dealing with the land until the caveat is removed or lapses.

A caveat will often cause creditors to avoid giving you credit – including financiers.

The more caveats are over your property the more likely a creditor will commence legal action against you – because their security is disappearing before their eyes! Conversely, they may cancel your credit or refuse to continue it.

The caveat is registered at the titles office (Department of Natural Resources and Mines - DNRM).

The caveator (person that lodged the caveat) must commence Court proceedings against you within 3 months, and give notice to the titles office of the Court proceedings, to preserve the caveat.

If the caveator does not commence Court proceedings and notify the titles office, the caveat automatically lapses. The Registrar of Titles may then remove or cancel the caveat from the property’s title.

Three months is a long time to wait for a caveator to commence Court proceedings.

There are steps you can take. I can assist you to ‘force the caveat ours hand’, and ‘call their bluff’ in certain circumstances and prevent any collateral damage to your name or business.

If that isn’t suitable, or doesn’t work, I can help.

Application to the Supreme Court

A more aggressive option that you have is to apply to the Supreme Court of Queensland for an order to remove the caveat.

You may still apply to Court to remove the caveat after Court proceedings have been commenced by the caveator against the caveatee.

When you apply to Court to remove a caveat, the caveator bears the onus to demonstrate:

1. A genuine arguable case; and

2. that the balance of convenience favours the continuation of the caveat.

Genuine Arguable Case

To demonstrate a genuine arguable case, a caveator must show that it has an interest in the land the subject of the caveat.

A simple debt owed by the owner of a property to the Plaintiff does not give the creditor a caveatable interest. The Court ought to remove such a caveat on your application.

Balance of Convenience Test

If the caveator establishes that it has a caveatable interest in the property, the Court will consider whether the balance of convenience supports the removal of the caveat.

Many different factors will affect the balance of convenience. Common factors that the Court will consider in a balance of convenience argument are:

An undertaking as to damages offered by the caveator;
An undertaking not to deal with the property offered by the caveatee;
Other available security for the caveator apart from the property;
The strength of a caveator’s claim against the caveatee;
If the caveatee is seeking to dispose of the property and why; and
If other parties are affected by the caveat, for example, buyers of off the plan lots.

Costs

If the Court orders that the caveat be removed, it will likely award costs in favour of the you.

Such a costs order typically will have a big effect on the caveator and influence the outcome of the litigation as a whole.

If a costs order is not paid by the caveator, there are further strategies that I can advise on, such as strike out orders, dismissal of the case and seeking a stay of the proceedings until the costs are paid, or applying for security for costs.

Call me now for help!

If you own a property that has been caveated, and you want the caveat removed, contact me to discuss how I can assist you. I can also assist if you are looking to put a caveat on property to protect your interests.