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A caveat lodged in Victoria is a tool for a party other than the registered proprietor to lodge an 'estate or interest' in the land. Once successfully lodged with the Land Titles Office a note will be recorded on title providing notice of the 3rd parties (i.e the caveators) interest claimed.
Arising under a contract of sale
By guarantee that provides the right to lodge
A Purchasers lien
An agreement that allows lodgement of a caveat. For instance an agreement where a debtor authorises a creditor to lodge a caveat on their property in order to protect their interests (i.e an equitable charge)
A claim from the caveator under trust
Our firm is complaint to PEXA. This
Certification is achieved through further
training on the e-conveyancing platform, this is where caveat lodgement and removal occurs. This is just another reason as to why you are in good hands with Galea & Faustin Solicitors
Provided that a 'caveatable interest' exists we may then look to the grounds of the claim. The onus of proving such grounds is placed upon the caveator. Pursuant to Section 53 of the Property Law Act 1958 (Vic) there is a requirement at law for all interests in land to be created or disposed of in writing. For instance a contract of sale may be relied on in respect to a ground of claim.
However, similar to other areas of law, exceptions can apply in specific circumstances. Although limited in scope, a 'caveatable interest' may be lodged against a property where there is no documentary evidence. These circumstances most typically arise in claims of alleged constructive trusts as they are not evidenced in writing. For instance the claim in a family law scenario (i.e matrimonial or de-facto partners) whereby the property has been registered in the name of only one party the other party may seek to claim an interest in the property upon the basis of a constructive trust.
Grounds of claim
The requirement of a 'Caveatable Interest'
Application for the removal of caveat
The Transfer of Land Act 1958 (Vic) (“The Act”) prescribes two methods under which an application for the removal of a caveat may be lodged.
Section 89A of The Act allows the registered proprietor to make an application to is the Registrar of Titles stating there are no legal grounds for the caveat in question to be lodged. This application must be supported by a solicitor’s certificate that states it is their opinion the caveator does not have an interest in the land.
Following lodgement of this application, the Registrar of Titles will write to the caveator advising that the caveat will lapse in 30 days. The caveator may issue court proceedings within those 30 days to defend their proposed interest.
Alternatively, Section 90(3) of The Act allows the registered proprietor to issue proceedings disputing the caveat.
If proceedings are commenced and the issue is considered by the Court, the onus is on the caveator to prove that they have a valid caveatable interest. The court will consider the following:
1. Is there a serious case to be tried
2. The balance of convenience must favour maintaining the caveat on title until trial, over immediately removing it from title
To lodge a caveat the caveator must have a 'caveatable interest'. Some common types of 'caveatable interests' include:
How we can assist
Advice pertaining to your rights and whether you hold a 'caveatable interest' and 'grounds for claim'
Lodgement and removal of caveats
Assistance in circumstances where a caveat requires financial settlement (i.e where a debtor is required to satisfy a payout figure to the creditor for the caveat to be removed.
Advice regarding hostile caveats
Negotiations with caveators on your behalf
Assistance in applications for the removal of caveats affecting your title
If any of the above resonates with you please please take a moment to complete our below contact form for an experienced member of our Narre Warren caveat lawyers team to get in touch with you today to provide you with an appropriate course of action.
Contact our property team today to discuss your caveat matter.
Frequently asked questions
What is PEXA?
'PEXA' stands for the Property Exchange Australia, it is the leading Electronic Lodgement Network (ELN) in Australia. Essentially this is a nationally recognised system that provides for fast, safe and efficient property settlement.
Can you provide the lodgment and removal of caveat upon a fixed fee basis
How do I know if my property is affected by a caveat
Upon the successful lodgement of a caveat the Registrar of Titles will write to the registred proprietor(s) of the affected property providing them notice of the lodgement.