When does the non-urgent process apply?
Most commonly, our non-urgent administrative process will apply where
you don’t have a settlement or immediate need for finance but where:
- someone lodged a caveat without any written agreement or any
permission for them to have done so (often to pressure you into paying
an unsecured debt);
- you have fully paid the debt or money the caveat was to secure but the caveat has not been removed;
have settled a family law proceeding but the caveat lodged over the
family home or other property was not removed as part of the process; or
- you have settled a dispute with another person but forgot to deal with the caveat during the settlement.
When does the urgent process apply?
Most commonly, our clients have approached their bank or lender and
found an improper caveat on their title. This, they are rightly told,
will prevent them from selling or obtaining a loan. They have tried to
contact the person who has lodged the caveat but found themselves unable
to negotiate the quick withdrawal of the caveat. This is where urgent
Court proceedings are required. In this case, we meet to discuss the
caveat, decide whether it is improper, seek to negotiate its prompt
withdrawal and, where negotiations fail, file urgent Court proceedings
to lift the caveat from the title.
What is an improper caveat?
Improper caveats occur when they are lodged to do something other
than secure an ‘interest in land’. Most commonly, this occurs where a
caveat is lodged to recover an unsecured debt.
What is a proper caveat?
A proper caveat occurs where it protects the caveator’s (the person
that lodged it) interest in land. Commonly, proper caveats arise when:
- in a family law context, one party lodges the caveat to protect the family home or other joint asset;
- there is a written agreement that allows a party to lodge a caveat to secure an interest (often called a ‘charging clause’);
- a trustee in bankruptcy has lodged the caveat to protect a property that forms part of the bankrupt’s estate;
- a person has contributed money to the purchase price of the property; or
- a person has been promised an interest in land and acted to their detriment or forgone opportunities because of that promise.