When Will A Caveat Lapse and How Can You Have It Removed?

If a caveator (person who lodged the caveat) has lodged a caveat over the title to your property, this can significantly threaten your interests. You may wish to sell or transfer the property, and want the caveat removed.

We have significant relevant experience in property disputes and the expedient removal of unwanted caveats. We can assist you to get a timely result.

For information about the purpose and requirements to lodge, and the circumstances in which a person can lodge, see lodging a caveat.

When Caveats Lapse

There are steps you can take to speed up the time it takes for a caveat over the title on your property to lapse.

Caveats will commonly lapse:

• because another interested party has lodged their competing interest on the title;
• due to the caveatee (registered owner of the property) issuing notice to the caveator; or otherwise
• in Queensland, 3 months after lodgement.

Caveats Automatically Lapse After 3 Months

Queensland has a unique provision of the Land Title Act 1994 (Qld) which will result in a caveat lapsing upon the expiry of 3 months from the date of lodgement if the caveator does not institute proceedings and notify the Registrar of Titles.

Issuing Notice to The Caveator To Commence Proceedings Within 14 Days

Three months can be a long time to wait for a caveat to lapse.

To expedite the process, you can issue a notice to the caveator demanding they commence proceedings for the interest claimed in the caveat.

In circumstances where notice is issued, the Land Titles Act 1994 requires the caveator to institute Court proceedings and notify the registrar within 14 days after the caveatee serves them with the notice.

If the caveator fails to comply with the notice, the caveat will lapse at the expiry of the 14 days.

When A Caveat Will Remain in Force

Caveats will not lapse in certain circumstances, including but not limited to:

1. if the registered owner consents to the caveat upon lodgement;
2. if a Court order entitles a party to lodgement of a caveat;
3. if the land titles registrar lodged the caveat; or
4. if the caveator commences proceedings within the requisite time before a competent Court.

How to Remove A Caveat?

You can also apply to remove a caveat, rather than simply letting it lapse.

The titles registry may remove a caveat from a title in circumstances where:

• the caveator withdraws the caveat;
• it has lapsed;
• the Supreme Court orders its removal; or
• the registrar otherwise cancels or rejects it.

Withdrawal

The caveator may request to withdraw a caveat by completing and lodging a Form 14.

Commonly, a caveator will withdraw the registration of their interest because the disputing parties have reached an amicable arrangement.

Lapsing

As mentioned above, upon a caveat lapsing it will no longer have an impact on the property title.

It is not uncommon, however, for the caveat to still appear on the title after the lapse has occurred.

In these circumstances, the registered owner may apply to the Registrar of Titles to remove the caveat because it has lapsed.

Court Order – Application to Remove A Caveat

The Land Titles Act 1994 entitles the registered owner of the property or another person with an interest in the lot to apply to the Supreme Court for an order removing the caveat.

You can make such an application at any time and it is the most efficient and effective way to have a caveat removed where it is a matter of urgency and the caveator has refused to withdraw it or the registrar will not cancel the caveat.

Supreme Court proceedings are, however, complex, and often require a party to put legal submissions before a judge concerning whether the caveator has a “caveatable interest” in the property.

 
Apply to The Supreme Court to Remove the Caveat Without Notice

A Court can make an application to remove a caveat ex parte (without notice to the caveator).

Generally, however, a caveatee should provide notice of the application as questions of natural justice can otherwise arise.

 
Powers of The Court

Although the Court may make an order to remove the caveat, it also has the implicit power to order the opposite. Therefore, it is always in a property owner’s interests to seek independent legal advice concerning the removal of a caveat, before applying to the Court.

Cancellation by Registrar

Registrars have the power to cancel a caveat upon receipt of a request to do so.

The Registrar must be satisfied that the request establishes one of the following:

1. the caveator’s interest has ceased or they have otherwise abandoned or withdrawn their claim;
2. the caveator has settled their claim by agreement or it has otherwise been satisfied; or
3. the nature of the interest claimed does not entitle the caveator to prevent registration of an instrument that has been lodged.

A person making a cancellation request must do so in the requisite form.

The registrar will notify the caveator at least 7 days before they cancel the caveat.

The registrar will generally only exercise such powers in clear cases.

Here to Help

Proper experience in dealing with property disputes and caveats is essential.

Aitken Whyte Lawyers are focused on results and have significant relevant experience in the removal of unwanted caveats and related commercial litigation.

Our Litigation and Dispute Resolution Team can advise you if you need to protect your ability to freely deal with your property. We can detail the proper course to take if someone has brought a claim against you, or claims they hold an interest in your land.

Aitken Whyte Lawyers can help you to resolve all property-related disputes.

Office Location and Contact Details

Sunshine Coast

Maroochydore
Aitken Whyte Lawyers
11/8 Pikki Street,
Maroochydore Qld 4558
Ph: +617 5408 0655
Fax: +617 3211 9311
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