Any person claiming to be entitled to or beneficially interested in any land, or any person transferring land to be held on trust, is allowed to lodge a caveat preventing dealings with the land.
In this Blog I look at how to remove a caveat against dealings.
Removing a caveat
There are three ways to remove a caveat:
- The caveat can be withdrawn by the caveator (the person who lodged the caveat);
- By a court order for removal of a caveat;
- The caveat may lapse (on application by the owner or another person).
Withdrawal of caveat
The caveator may withdraw a caveat either in whole or as to part of the land affected by the caveat. This is by far the easiest, but often the most unlikely, way of removing a caveat.
Order for removal of caveat
The owners, or any other affected persons, can apply to the High Court for an order that the caveat be removed. The Court, on proof that notice of the application has been served on the caveator the Court may make such order “as to the Court it seems meet”.
The caveat will be removed if there was no valid ground for lodging it, or if the valid ground no longer exists. The caveator only needs to establish that there is an arguable case that the valid ground for the caveat exists for the caveat to be sustained.
Lapse of caveat
On the application of the owner for the caveat to lapse; or on application made by any other person to register an instrument against the land, the Registrar will issue a notice of the application to the caveator. Unless the caveator takes certain steps promptly, the caveat will lapse.
Within 14 days of receiving the notice, the caveator must give notice to the Registrar that the caveator has applied to the High Court for an order that the caveat should not lapse. Within 28 days of giving that notice to the Registrar, the caveator must have served on the Registrar an order from the High Court that the caveat should not lapse. If these times limits are not met, the caveat will be deemed to have lapsed.
Where the caveator has shown an arguable case for the caveat to be sustained, these court proceedings act to keep the caveat in place until the matter is determined in a full court hearing. The proceedings do not finally determine genuinely disputed questions of fact or law.