Firstly, it is important to understand what a caveat is. A caveat is a formal way to make it known that you have an ownership interest in a parcel of real property. But how does one gain such ownership in a piece of property that technically belongs to another? There are a few different ways in which such ownership rights can arise;
- If you are a purchaser for the sale of a piece of land
- You own a security right in the property to ensure performance on a contract and/or some other obligation
- If you are the beneficiary of a trust; in particular, a unit trust
- If you are a person who has performed work on behalf of the property
- If you have contributed toward the property, financially
- If you have a lease that gives you rights as a lessee
- If you have an option to purchase the property
- If you have an equitable mortgage on the property
- If you have an easement or an encumbrance on the property
One of the great misconceptions is that you can create a caveat on a piece of property if someone owes you money on a loan. This is not necessarily true. Before you attempt to file a caveat under these circumstances, we recommend you seek legal counsel. There are penalties associated with attempting to file an unsupportable caveat which can be severe, including paying the legal fees of the party defending against your claim of caveat.
Second, if you believe you have a caveat, you must make it known to the public. Hence, you must file a lodge with the New South Wales Land and Property Information Office. To do this, you must request and fill out the lodge form and file it with the Land and Property Information Office. In order to properly complete the form, you will need the following information;
- The particulars of the land you claim to have a property interest in; including the address and a description of the type of property it is.
- The name and detailed information identifying the current proprietor of the property
- A clear statement regarding the nature of your interest and/or ownership rights in the property
These details are extremely important to secure a legal caveat. If you do not have all of the required information, or if you get a pivotal detail(s) incorrect, the caveat can be denied. Therefore, before you file your lodge form, be sure to investigate and carefully record accurate information that can easily be verified by the Land and Property Office. Even if you are entitled to a caveat, if you present incorrect or misinformation, your caveat can be denied.
Filing a caveat against a property is a serious action that must be supported by your legal right to do so and accompanying evidence of the same. Therefore, because this process is highly detailed, if you believe you have the right to a caveat, based upon one of the scenarios listed above, it is highly recommended you seek legal counsel before attempting to file with the NSW Land and Property Information Office.
If you find yourself in need of assistance with this or any other legal issue, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.