Firstly it is important to understand what a caveat is - it is a notice on a title to land that a person claims a particular unregistered interest in the land. The effect of registering a caveat over land is that it places a ‘freeze’ on other dealings that can be registered on the title to land until the matter the subject of the caveat has been resolved.
To lodge a caveat over Tasmanian property you must have a caveatable interest in land. This means that the caveator must, at the time of caveating, have some legally recognised estate or interest in the land. If a caveatable interest existed at the time but then, during the life of the caveat, circumstances changed such that the alleged interest in land was no longer able to be supported by a caveat, the caveator should take steps to withdraw the caveat from the title.
A caveatable interest in land is not easy to define. However, as examples caveats might be lodged in the following circumstances:
• The purchaser (being a person with an equitable interest in the land) under a contract of sale;
• A seller of land who has received part of the instalments for the purchase price, but is no longer the owner noted on the title to the land;
• A person with a right of access to the land (for example an unregistered easement); or
• A tenant under a lease that is not registered.
For example, if a mortgage document creating an interest in land cannot itself be registered, this would normally be as a result of the refusal on the part of the owner to produce title at the titles office to enable registration of the mortgage. In this occurs then the mortgagee (lender) can lodge a caveat on the title to protect their interest in the land created under the mortgage. The effect of the caveat is that the land can’t be sold until the mortgage is fully repaid.
In Tasmania it is a requirement that caveats must be lodged in the “approved form”. The approved form can be found on the Land Information System Tasmania (the LIST) website and lodged as a traditional paper lodgment or registered users of Tasmanian Online Land Dealings may lodge digitally.
It is important to ensure that care is exercised in lodging a caveat. This is because the lodgment of an unjustified caveat in Tasmania may result in damages being awarded against the applicant, if it is found that the caveat was lodged without justification. Accordingly, you should always seek legal advice before lodging a caveat as the costs and potential damages involved can be significant.
For more information or if you require any assistance in relation to caveats for your Tasmanian property, please contact us on 03 6332 9353 or complete our simple form that can be found at http://www.cormistonlegal.com.au/contact
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