Version 5 - 30/08/2018
Verification of Identity
The caveator in an application will be subject to the Verification of Identity process as of 5 June 2018.
This process is completed by Australia Post for self-represented parties. Refer to the Australia Post website to complete your verification of identity.
1 By Withdrawal
A caveat may be withdrawn by lodgement of a Withdrawal of Caveat form. Landgate introduced the ability to lodge a Withdrawal of Caveat electronically in May 2015.
The removal of a caveat under this process is made by the caveator and signed by the caveator, unless being lodged electronically.
Where a caveat has been lodged by a purchaser pursuant to a sale of land on terms and a transfer of the same land to the caveator is being lodged, it is permissible for the solicitor lodging the transfer to sign the withdrawal on behalf of the caveator, provided the transfer and withdrawal of caveat are lodged together.
Each caveat being removed is subject to standard lodgement fees. (See also: DOC-01 Document Preparation.)
1.1 Death of a Caveator
Where there are two or more caveators, it is the responsibility of the surviving caveator to establish how the interest or claim was held, i.e. jointly or in shares.
Where the interest was held jointly the surviving caveator may complete the withdrawal form and provide the appropriate evidence similar to a Survivorship Application (See also: DEC-02 Survivorship).
In the event of a Sole Caveator, the Executor(s)/Administrator(s) of the decease caveator may apply for the removal of the caveat using a withdrawal of caveat form. The Executor(s)/Administrator(s) would need to provide the appropriate evidence similar to a Transmission Application. (See DEC-03 Transmission Applications).
1.2 Removal of Registrar’s Caveats (NEW)
A Registrar’s Caveat is rarely removed prior to a transaction being presented for lodgement/registration. The Transaction is generally lodged subject to the caveat and where the transaction is consistent with the purpose of the caveat, the caveat is removed by the Registrar of Titles to allow the transaction to proceed.
A person seeking the withdrawal of a Registrar’s Caveat needs to satisfy the Registrar of Titles that the withdrawal of such a caveat will not allow the rights protected by the caveat to be defeated.
Where the caveat has been lodged to protect interests under a trust, see POA-05 Declarations of Trust (Section 55 of the TLA) - Removal Options.
Where the caveat has been lodged to protect an incapable person identified in a State Administrative Tribunal Order (SAT). the caveat will be lifted upon the lodgement of a valid Transfer (bona fide sale) (see Transfer by Attorney Under EPA or by Administrator Under Board Order) or an application by survivorship or transmission.
Where the caveat has been lodged to protect a persons’ right to reside on land contained in a Will, the caveat may be lifted where a request in writing is received that is either accompanied:
- by a sworn statutory declaration by the person holding the right declaring their interest has ceased or they relinquish the interest, or
- Notice of death of the interest holder
Note: Registrar’s Caveats protecting a trust will be removed and re-applied where a Transfer is simply transferring to a new Trustee.
2 By Lapse under Section 138 of the TLA (14 Days’ Notice)
On the presentation for registration of an instrument and on written request signed by:
- a party to the instrument
- a solicitor for the party to the instrument or, if a firm of solicitors, a member of that firm
- a licensed settlement agent, on the letterhead of his or her firm
- a licensed estate agent on the letterhead of his or her firm
- the senior security officer of a bank on a bank letterhead;
and on payment of the prescribed fee, fourteen days’ notice will be sent by the Registrar to the caveator at the address or the number for a facsimile machine for service of notice given in the caveat. The notice will require the caveator to take action in Court to substantiate his or her claim, failing which the caveat will lapse and the instrument will be registered.
It should be noted that a caveat lapses only to the extent necessary to permit the registration of the instrument under which the notice was sent. In the case of a paper title, a transfer of one lot out of several in the title results in the lapse of a caveat as to that one lot only.
Notice may not be sent on caveats lodged by the Registrar or caveats lodged by a beneficiary under a will or trust.
3 Caveat (Improper Dealings)
In order to remove a Caveat (Improper Dealings) all the registered proprietor(s) must present themselves in person at the same time at Landgate’s Midland office and satisfy as a minimum the requirements of a 100-point check using original documents (copies are not allowed). Only the registered proprietor(s) of the property can remove the Caveat in person. A Withdrawal of Caveat (Improper Dealings) can only be lodged at the time of witnessing.
A Power of Attorney cannot be used to withdraw the Caveat.
Due to the operation of law the Caveat (Improper Dealings) will not prevent the following, including but not limited to:
- Mortgagee exercising a power of sale would be able to use s.138B of the Transfer of Land Act 1893 (TLA) as the application is not being signed by the registered proprietor(s).
- Sale of the property by a Local Government for non-payment of rates.
- Sale by the Sheriff under a Property (Seizure and Sale) Order.
- In the case of deceased owner(s) Survivorship and Transmission.
- Sale under the Criminal Confiscation Act 2000.
4 By Taking or Acquisition
Any caveat lodged over land taken under the Land Administration Act 1997 (LAA) or compulsorily acquired by the Commonwealth under the LAA, is automatically removed. The caveator’s claim is converted into a right to claim for compensation.
5 By Order of the Court
On the motion of the registered proprietor, a Judge or the Court may make an order removing a caveat from the register. On receipt of an office copy of the order with an application form and the payment of the required fee, the caveat is removed from the title.
6 By Sale for Rates
With the exception of caveats by the Commissioner for State Taxation, which must be withdrawn, all caveats are automatically removed on the exercise by a Local Government of its power to sell land for non-payment of rates under the Local Government Act, 1995.
7 By Sale under a Property (Seizure and Sale) Order
Where a transfer is registered giving effect to a sale by the Sheriff under a Property (Seizure and Sale) Order, any caveat lodged subsequent to the Property (Seizure and Sale) Order and without the consent of the Sheriff is automatically removed.
A caveat lodged specifically to prevent the sale will delay registration until withdrawn, removed or lapsed.
8 Section 138B of the TLA (21 Days’ Notice)
The registered proprietor(s) of the land in respect of which a caveat is lodged, or the judgment creditor named in a property (seizure and sale) order registered in respect of the judgment debtor’s saleable interest in such land, may make application for the removal of a caveat under s.138B of the TLA. This section requires the caveator to take legal action and obtain a Supreme Court Order substantiating the estate or interest claimed in the caveat within 21 days of the service of notice.
An application under s.138B of the TLA cannot be lodged on the following types of caveat:
- Caveats lodged under Sections 30, 176 or 223A of the TLA.
- Caveats under any other written law which specifically provides for the lodgement of a caveat.
- Caveats lodged by virtue of a Court Order.
- Caveats protecting beneficiaries under a will or settlement.
- Caveats lodged by or on behalf, or with the consent of the Minister for Lands.