Buying Property? What Does an Unexpected Caveat Mean?
Finding a caveat on a property you're looking to buy can be an unwelcome surprise.
A caveat can prevent certain dealings with a property from being registered, which can delay a sale or prevent a purchaser from settling until the issue has been dealt with. It can also create problems with finance because lenders generally require clear title.
First, What Is a Caveat?
A caveat is a legal notice recorded against a property.
Importantly, a caveat may only be lodged by a person or entity with a legal or equitable proprietary interest in the land.
It effectively acts as a statutory injunction, preventing the Registrar of Titles from registering certain dealings with the property, such as transfers, mortgages or leases, unless the caveat is withdrawn, removed by court order or otherwise lapses. caveat on properties
Why Might a Caveat Be Lodged?
There are several reasons why a caveat may be placed on a property.
These can include securing a debt owed by the borrower, protecting a buyer's equitable interest in land under a contract of sale, or protecting an unregistered or equitable mortgage.
A caveat can therefore indicate that another party has an interest in the property that needs to be resolved.
How Can a Caveat Affect a Property Purchase?
If you're buying a property with a caveat on the title, it can complicate the transaction.
For example, the sale may be delayed or prevented from proceeding until the caveat has been dealt with.
It can also affect finance. Lenders generally require clear title, so an unresolved caveat may make it difficult to obtain or finalise finance.
What Should You Look Out For?
If a caveat appears on a property, you're considering buying, don't simply assume it will disappear before settlement.
Find out:
- Why the caveat has been lodged.
- Who has lodged it.
- What interest the caveator is claiming.
- Whether the caveat needs to be withdrawn or formally removed.
- Whether it could affect your ability to settle or obtain finance.
The type of caveat matters too. The source material identifies different types, including absolute caveats, subject-to-claim caveats, caveats lodged after notice, improper dealing with caveats and registered proprietor's caveats. caveat on properties
How Is a Caveat Removed?
There are several possible ways of dealing with a caveat, depending on the circumstances. These can include withdrawal by the caveator, statutory removal or court resolution.
A withdrawal generally needs to be signed by the caveator and lodged electronically where required. There is also a process for applying for removal under section 138B of the Transfer of Land Act 1893. caveat on properties
The caveator has 21 days after being served with the relevant notice to act, although the Supreme Court may order an extension in some circumstances.
Don't Let a Caveat Catch You by Surprise
If you're buying or selling property, understanding what is recorded on the title is an important part of the process.
An unexpected caveat doesn't necessarily mean a property deal can't proceed, but it does mean there is an issue that needs to be understood and dealt with.
At Ascent Property Co, we can help you understand the financial implications of a property transaction and work alongside your legal advisers to help you make informed decisions.
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