Do you have an interest in someone else’s land that you wish to protect? If you do, you may be entitled to lodge a caveat over that person’s land.
What are caveats?
Caveats are documents lodged for the purpose of protecting property rights that do not appear as legal or registered property rights on the title.
The purpose of the caveat is to forbid the registration of any further dealing with the land to protect and preserve the estate or interest protected under the caveat.
The person lodging the Caveat is called the Caveator and the person who owns the land, the registered proprietor, is called the Caveatee. Once a caveat is lodged, the caveatee cannot, for example, sell the land without dealing with the claim of the Caveator (unless the Caveator decides to withdraw their caveat).
What is a caveatable interest?
Examples of “caveatable interests” are as follows:
- A purchaser of a contract wishing to protect his or her interest in the land the subject of the contract by lodging a caveat prior to settlement of the contract (particularly where the vendor has threatened to breach the contract);
- A lender of money to a borrower who has agreed to charge his or her land to secure payment of the debt;
- A person who has made direct and indirect financial and non-financial contributions to the property in circumstances where he or she is able to claim to have a beneficial interest in the land (for example, a spouse can caveat his or her interest in the land of a former spouse to protect that interest before the matter is resolved under the Family Law Act).
Not all interests are caveatable interests: for example, the fact that you may be owed money by someone does not mean that you have a right to lodge a caveat against that person’s property where there was no agreement (particularly in writing) linking the debt to the property.
How caveats can be removed, withdrawn or extended by the Court
A caveat can be removed by the caveatee by lodging an Application for Removal, whereupon the caveator has 21 days to seek a Court Order to extend the Caveat, otherwise the caveat will be removed by the Lands Titles Office.
A caveat can also be withdrawn by the caveator in circumstances where the caveatable interest has been satisfied by the Cavetee or no longer pursued by the Caveator.
What is a worker’s lien?
If you have carried work on a property or provided materials used in such work, and the work was done with the consent or at the request of the owner and occupier of the property, and you have not been paid, you can lodge a lien over that property with the Lands Titles Office.
A worker’s lien has a similar function as a caveat because its registration prevents the registration of any further dealings with that property. If the work was done, for example, to build or improve a house property that is to be placed on the market for sale, the lien will prevent the sale of the property unless the lien is discharged.
How we can help you
At Di Rosa Lawyers, we have many years of experience and expertise in:
- Advising clients on what are and are not caveatable or lienable interests;
- Preparing and lodging caveats which comply with the law with respect to caveatable interests and liens which comply with the Worker’s Liens Act 1893;
- Preparing and lodging:
- Applications to Remove Caveats;
- Withdrawals of Caveats;
- Notices of Lien;
- Cessations of Lien;
- Withdrawals or Satisfactions of Lien.
- Bringing and defending proceedings in both the District Court and Supreme Court with respect to extensions of caveats and in the Magistrates Court of South Australia in relation to Workers Liens.