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Protecting My Interests in Property

By | Property Law

A Caveat is a legal document registered on the Title of a property which generally prevents dealings with that property without the lodger’s consent. Once registered on Title, it acts as a warning or formal notice to advise the public that someone (the Lodger) has an interest in the land or property.

The most common query regarding a Caveat is can it be lodged to protect the recovery of the debt? The general answer is no. A Caveat can only be lodged when there is a “caveatable interest” and this generally means an equitable or legal interest in the land or a right, power, or privilege over the land which is the basis of the Caveat. There are a number of examples of this including an equitable mortgage, constructive trust or agreement which provides that a property is charged or encumbered with the repayment of a loan. These are just some of the examples that may constitute a caveatable interest; however, it is important to note that it is more than a mere claim for damages.

The Caveat, however, is a very powerful tool which prevents the party from dealing with their property and may heavily impact the owner of that property by preventing them from selling or mortgaging their property. As a result there is substantial liability which may be imposed on a person who lodges or continues with the caveat without reasonable grounds. In the event that another party suffers loss or damage as a result of that lodgement the lodger of the caveat may be liable for those damages or loss.

Any party wanting to lodge a Caveat should seek specialist legal advice and it should bear in mind that all times the potential liability that may attach if the grounds for lodging that Caveat are insufficient and the caveat causes loss or damage. The general rule for a caveat is that it will automatically lapse after a three-month period unless proceedings to support that Caveat are commenced. There are certain types of Caveat that will be non-lapsing however.

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