What is a Caveat?
A caveat is a type of statutory injunction preventing the registration of particular dealings with real property. A caveat acts as a warning or formal notice to tell the public that there is an interest on the land or property for a particular reason. The word caveat means ‘beware’ and lodging a caveat on real property warns anyone dealing with the property that someone has a priority interest in that property. The party who lodges a caveat is known as a caveator.
Reasons for Lodging a Caveat
If you have an estate or interest in land through which registration of another dealing cannot protect, you may consider lodging a caveat to protect your legal position. This is known as a caveatable interest. You must ensure that you have a genuine interest at the time you are lodging the caveat.
Caveatable interests include a registered or equitable mortgage, transfer, a purchaser under an agreement for sale, a tenant (in certain circumstances), a registered proprietor and contractual rights such as a Commercial Credit Agreement which contains a charging clause.
Each state and territory has an individual system of lodging caveats. For example, in NSW, the Real Property Act 1900 governs caveats. When a caveat is lodged at the Land & Property Information (LPI), it effectively prevents the registration of further dealings on the property’s title until the caveat:
- is formally withdrawn by the caveator;
- removed by a court order; or
- the caveator consents to another’s registration that deals with the property’s title.
Any person with an interest in land or wishes to claim an estate may lodge a caveat. A person who has an Australian court order restraining the registered proprietor from dealing with a property can also lodge a caveat.
What is a Writ?
A writ of execution (also known as an execution) is a court order granted to put in force a Judgment Order obtained by a plaintiff from a court. When issuing a writ of execution, a court typically will order a sheriff or other similar official to take possession of property owned by a judgment debtor.
Reasons for Registering a Writ
Registration of a Writ over real property, coupled with an Enforcement Warrant (Seizure & Sale) will secure your interests for six months (able to be renewed at the end of six months for a further six months). The Writ and Warrant will enable the Bailiff/Sheriff to auction the property and, if equity is available, recover the debt owed to you.