Wednesday, June 15, 2011

Caveats - the basics

I am involved in a trial in respect of the removal of a caveat. In that matter the parties are debating whether or not the particular instruments executed by them give the caveator an interest in land capable of supporting a caveat.

Rather than let all of my good research go to waste (i.e. into the pile of authorities sitting on my shelving awaiting filing), I have decided to publish a series on caveats to discuss what is a caveat, what protection does the caveat afford, what is a caveatable interest, when may a caveat be registered on a title and how to remove a caveat.

This article below discusses the basics - what is a caveat.

When a person has an interest in land which is not registered, such as a charge, that person's interest may be jeopardised if the owner of the land wants to sell the land. This jeopardy arises because of the system of title by registration of Torrens Land, which is reflected in the Transfer of Land Act 1958 (Vic) (the TLA). When a person sells land to another and a third party has an unregistered interest in the land being sold, when the sale occurs, that third party will usually lose the ability to enforce that interest against the land.

The system of caveats is in place to protect people who have unregistered interests.

The purpose of a caveat was expressed by Barwick CJ in J & H Just (Holdings) Pty Ltd v Bank of New South Wales (1971) 125 CLR 546 at 552 as follows:
Its purpose is to act as an injunction to the Registrar-General to prevent registration of dealings with the land until notice has been given to the caveator. This enables the caveator to pursue such remedies as he may have against the person lodging the dealing for registration. The purpose of the caveat is not to give notice to the world or to persons who may consider dealing with the registered proprietor of the caveator's estate or interest though if noted on the certificate of title, it may operate to give such notice. If the caveator does not take proceedings in due time against the person who has lodged a dealing for registration, and the dealing is registered, awareness of the existence of the caveat, and through it, that an estate or interest is claimed by the caveator, will be irrelevant except possibly as an element in establishing fraud in the procurement of the registration. But of itself such awareness will not vitiate the registration.
Interests are usually unregistered for the following 3 reasons (See Classic Heights Pty Ltd v Black Hole Enterprises Pty Ltd (1994) V Conv R 54-506):
  1. A registrable document has been executed giving rise to the interest, but it has not been registered (e.g. an executed but not registered mortgage).
  2. A transaction has occurred giving rise to the interest, but a registrable document in respect of the interest has not been executed or registered (e.g. a loan providing for a mortgage of property).
  3. The interest is not able to be registered (e.g. an equitable charge).
If a person wants to protect an unregistered interest, and that interest is an interest in land, then that person may lodge a caveat with the registrar of titles. s89(1) TLA authorises a lodgement of a caveat as follows:
Any person claiming any estate or interest in land under any unregistered instrument or dealing or by devolution in law or otherwise or his agent may lodge with the Registrar a caveat in an appropriate approved form forbidding the registration of any person as transferee or proprietor of and of any instrument affecting such estate or interest either absolutely or conditionally and may, at any time, by lodging with the Registrar an instrument in an appropriate approved form, withdraw the caveat as to the whole or any part of the land.
The utility of a caveat is obvious from s91 TLA, which provides as follows:
(1) So long as any such caveat remains in force the Registrar shall not except to register or give effect to- 
(a) a transfer or dealing referred to in section 90(1)(a)(b)(c)(d) or (e); 
(b) a transfer or dealing referred to in section 90(5); or 
(c) a transfer or dealing in respect of which the caveat has lapsed- 
record in the Register any change in the proprietorship of or any dealing purporting to affect the estate or interest in respect of which the caveat is lodged.
That is, except in very limited circumstances, the Registrar must not record any change in proprietorship or dealing which may affect the interest in respect of which the caveat is lodged.

When a person lodges a caveat that person must have a caveatable interest. Whether or not that person has a caveatable interest depends on the construction of the following expression in s89(1) TLA: 'any estate or interest in land under any unregistered instrument or dealing or by devolution in law or otherwise'.

I will go into more detail on this in my next post on this topic.

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