CAV-05 Caveats - removal

1. By Withdrawal¹⁰

A caveat may be withdrawn by lodgement of a Withdrawal of Caveat form.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. As of 1 December 2018, all eligible, stand-alone Withdrawal of Caveats and any lodgement case consisting of eligible discharges, transfers, mortgages, caveats and withdrawal of caveats must be lodged electronically, as per the Transfer of Land Regulations 2004.

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 CAV-06 Caveats - removal - document preparation and lodgement and
• DOC-01 Document Preparation

¹⁰Updated 28/02/2024

1.1. Death of a Caveator⁶

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 or claim was held jointly the surviving caveator may complete a Withdrawal of Caveat form accompanied by evidence similar to a Survivorship Application (See also: DEC-02 Survivorship).

Where the interest or claim was held as tenants in common, the remaining caveators and the Executor(s)/Administrator(s) of the deceased caveator may complete a Withdrawal of Caveat form accompanied by evidence similar to a Transmission Application. (See DEC-03 Transmission Applications).

In the event of a sole caveator, the Executor(s)/Administrator(s) of the deceased caveator may complete a Withdrawal of Caveat form accompanied by evidence similar to a Transmission Application. (See DEC-03 Transmission Applications).

Where a Personal Representative (Executor or Administrator) for the deceased caveator is withdrawing a caveat, where the caveator is shown in the Withdrawal of Caveat form state:

• “[Personal Representative’s full name] as Executor/Administrator of [deceased caveator’s name as shown on the Probate/Letters of Administration], deceased who died on [date of death].”⁹

⁶Section updated 03/03/2022

⁹Paragraph added 06/09/2023

1.2. Removal of Registrar’s Caveats

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. Section 138B of the TLA (21 Days' Notice)⁴

If the caveator obtains from the Supreme Court an order extending the operation of the caveat, a copy of the extracted Order must be served on the Registrar of Titles within the 21-day period.

If the caveator fails to obtain a Court Order extending the operation of the caveat within the 21 days' notice period, the caveat will lapse and an entry will be made in the Register removing the caveat. The following note will be added to the ‘(Application number) - Statement’ section of the title ‘Section 138D of the TLA applies to (caveat number)’. This note will run with the land/title indefinitely.

This Application type can be withdrawn from registration ‘prior’ to statutory notices being issued. Once statutory notices have been sent, this application can no longer be withdrawn and any request to withdraw from registration will be declined. The Application and notice period must run it’s course. If a withdrawal of caveat is lodged after the 21 days' notice has been sent, but before the lapse date shown in the notice has expired, the notice period is terminated and the proprietor can deal with the land immediately.⁸

⁵Paragraph added 25/01/2022

⁸Paragraph updated 29/06/2023

As these application types may result in Supreme Court action, applicants should consider obtaining legal advice if this removal option is appropriate for them.

2.1 Effect of Application

Where a caveat is removed by section 138B of the TLA, the caveator will not be able/prohibited to re-lodge another caveat by virtue of section 138D of the TLA:

• the lapsing of the caveat, by either the expiration of the 21 days or as a result of legal action, or
• upon the withdrawal of the caveat by the caveator upon receiving the notice from the Registrar;

 

The caveator may not re-lodge a new caveat unless the caveator has:

1. leave of the Court by Court Order or
2. the consent of the registered proprietor.

The consent to re-lodge must be provided simultaneously with the new caveat.

The prohibition under section 138D of the TLA is against the caveator and not the estate and interest claimed. Legal Advice should be obtained before a caveator considered re-lodging a caveat removed by section 138B of the TLA.

Upon lodgement and examination of the application, the caveator is served (at the address shown in the caveat) with a notice requiring that the caveator, within 21 days, obtain from the Supreme Court an order extending the operation of the caveat.

If the caveator obtains from the Supreme Court an order extending the operation of the caveat, a copy of the extracted Order must be served on the Registrar of Titles within the 21-day period. See REG-05 Service of Court Orders upon the Registrar for more information on serving Orders and effect of service.

If the caveator fails to obtain a Court Order extending the operation of the caveat within the 21 days' notice period, the caveat will lapse, and on the next business day an entry will be made in the Register removing the caveat. The following note will be added to the Statement’ section of the title ‘(application number) - Section 138D of the TLA applies to (caveat number)’. This note will run with the land/title indefinitely.

Note: The removal of caveats under s.138 of the TLA is separate and distinct from the processes under Sections 137, 138 and 141A.

⁵Updated to read S.138B rather than S.1388 24/06/2020

2.2 Forms and Fees

The application can be lodged in paper must be made on a Form AW (PDF) or eForm describing the land affected, the number of the caveat required to be removed and requesting that 21 days' notice be sent to the caveator under s.138B of the TLA. The application can also be lodged electronically by a subscriber in the Electronic Lodgment Network (ELN) as part of the residual document releases.

All of the registered proprietors affected by the caveat must be shown as applicants in the application and they must all execute the application and have their usual signatures separately witnessed (using the same witness is acceptable). For example, where the caveat is limited to the interest of one joint proprietor or to the share of one tenant in common, then only that one joint tenant or that one tenant in common is required to apply and sign the application.

If the applicant is a corporation, the application must be formally executed in accordance with the Constitution for that corporation. Refer SIG-03 Signing by a Corporation.

The regulated lodgement fee applies to this application.

2.2.1 Deceased Registered Proprietor

Where a registered proprietor affected by a caveat is now deceased. The application to remove the caveat must be lodged simultaneously with the Survivorship or Transmission application. The surviving proprietor or the Executor/Administrator can then apply.

No evidence in support of the application is necessary as it is provided with the Survivorship or Transmission.

2.2.2 Registered Proprietor name variation

Where an applicant(s) name differs from the Certificate of title, an application to amend name is not required (but preferred). Similar to the 'Exception to General Rule' provision, the applicant is required to make a statutory declaration and produce the evidence of the name change, referring to the new and old names in the applicant panel.

It is recommended that a formal change of name application be lodged if the applicant/registered proprietor seeks a formal change on the title.

NOTE: This arrangement is only to allow for notice to be sent on the application and the name of the proprietor on the title will not to be amended.

2.3 Service of Court Orders for the purpose of extending the operation of a caveat

Where an Order from the Supreme Court of WA is obtained within the 21 days’ notice period which extends the operation of the affected caveat, a copy of the extracted Order may be lodged with the Registrar for the attention of Dealings by the following methods (as set out in the original notice):

• in person at Landgate (Midland Office Only), 1 Midland Square, Midland WA 6056, or
• by email as an attachment to dealings@landgate.wa.gov.au.

Please refer to the initial notice/letter for more information regarding the service options.

2.4 Application Lodged by Mortgagee

The application should be made in the name of the registered proprietor of the land affected by the caveat and signed by the mortgagee under its power to dispose of ownership pursuant to s.108 of the TLA. It is also acceptable to show the applicant as the mortgagee on behalf of the registered proprietor of the land as mortgagee in possession.

The application is to be accompanied by a statutory declaration stating that:

• default under the mortgage has occurred,
• default notices have been sent to the mortgagor (indicating when they were sent),
• default period provided in the mortgage has expired. and
• default still continues at the time of the lodging of the application.

Where such an application is lodged, a copy of the notice sent to the caveator will also be sent to the registered proprietor.

2.5 Application Lodged by Judgement Creditor

3. 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

or

• 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.

4. Caveat (Improper Dealings)⁷

The removal of these caveat types is subject to the Verification of Identity process. Proprietors seeking to remove these caveat types should bring their Solicitor Verification of Identity statement or a Verification of Identity statement by Australia Post as a self-represented party.

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 for witnessing purposes (refer to 100 Point Identification form) 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 of Enduring Power of Attorney cannot be used to withdraw the Caveat.

Where the proprietor is now deceased, the Registrar of Titles may consider accepting a withdrawal of the caveat by the caveators personal representative, or the survivor, see section 1.1 above for evidence requirements. These scenarios should be lodged simultaneously with the survivorship application or transmission application.

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.

and

• Sale under the Criminal Confiscation Act 2000.

The registered proprietor(s) should not complete the signing/execution of the withdrawal of caveat until they attend the Midland Office, where they will sign/execution the document in the presence of an Assistant Registrar of Titles who will be the witness to the document.

⁷Section updated 04/11/2022

5. 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.

6. 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.

7. 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.

8. 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.

9. Section 141A of the TLA

Note: An application under s.141A of the TLA will not be considered where the same outcome can be achieved by making an application under s.138B of the TLA.³

A registered proprietor or any person claiming an interest in the land may make application for the removal of a caveat on the grounds that the estate or interest of the caveator has ceased to exist.

The application must be made on a blank application form describing the land affected, the number of the caveat required to be removed and requesting that 14 days’ notice be sent to the caveator under s.141A of the TLA.

Evidence must be supplied by way of statutory declaration setting out the facts by which the registered proprietor claims that the interest of the caveator has ceased. Any documentary evidence produced must be annexed to the declaration.

As each case is treated strictly on its merits, no guidance as to the evidence required can be given. This type of relief is rarely given where a purchaser’s caveat is concerned.

Where the Commissioner is satisfied that the caveator’s claim has ceased to exist, the caveator is given, at the address or the number for a facsimile machine shown in the caveat for service of notice, 14 days in which to withdraw the caveat or commence proceedings in Court to substantiate his claim.

After the 14 days have expired without any action by the caveator, a second notice is sent to the caveator advising that the caveat has ceased to affect the land.

The Commissioner then directs that an entry be made in the Register removing the caveat from the title.

Should the caveator take action to protect his or her claim he or she must join as parties the Registrar, or an Assistant Registrar, by name, and the registered proprietor, and any other person affected by the caveat.

Once the caveator has commenced proceedings to substantiate the claim the caveat will remain on the title pending the resolution of the Court Action. If successful, the caveat will remain on the title and the application will be withdrawn or rejected, with a partial refund of fees.

It should be noted that an application to remove a caveat using the provisions of s.141A of the TLA will not succeed if the applicant contends that the caveator’s claim was non-existent in the first place.

A mortgagee who wishes to lodge a transfer to exercise a power of sale, and is prevented from doing so by a caveat lodged subsequent to the mortgage, may in certain circumstances successfully apply under this section.

³Guide updated on 30/08/2018 to move note to top of Section 9

10. Also See

• REG-05 Service of Court Orders upon the Registrar
• DEC-02 Survivorship Applications
• DEC-03 Transmission Applications
• NAM-01 Name Amendment