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John Melis, Expert
Hi, I’m John, solicitor, and reviewing your post, and may need to ask a few questions a long the way to assist you.
Concerning your important matter, where you want to place a caveat on the property, what you need to do is utilise your local conveyancer or lawyer.
The alternative is to go to the titles office directly and manually lodge a caveat against the property.
The caveat will protect you and this will provide you negotiating power with your son to settle the dispute without fear of loss.
Caveats are a form of a statutory injunction and may only be lodged by persons who have an estate interest in land.
A party cannot confer a right under contract to lodge a caveat where no caveatable interest exists. However, if there is a proprietary right created through contract, which creates an interest in land a caveat can be registered against that land.
A caveatable interest is a proprietary interest. In Municipal District of Concord v Coles (1906) the court held: it is only a person who has a legal or equitable interest in land, partaking of the character of an estate in it or equitable claim to it, who can lodge a caveat.
Considering this point another way. An existing proprietary interest at law or in equity will support both the lodgement and extension of a caveat, whereas a straight contractual right will be insufficient. The legal and equitable interest must presently exist and not be a mere potentiality.
There needs to be no relationship between the registered proprietor and the interests of the caveator, all that is required to lodge a caveat is a legal or equitable interest in the property.
Once the caveat is lodged, it will remain in place until removed by the caveator or by order of the court.
Some examples of caveatable interests include:
1. A purchaser under a contract of sale.
2. A lender that finances a property.
3. A building contract which contains a charging clause for a caveat but this claim is with risk.
4. An option to purchase or repurchase land supported by valuable consideration.
5. A caveat may be lodged pursuant to an implied trust.
6. A caveat may be lodged pursuant to a constructive trust.
7. Personal representatives of a deceased estate have a right to lodge a caveat to protect the estate.
Caveats may be lodged under a range of claims, but caution must apply because wrongly lodging a caveat can destroy a registered proprietor’s right to deal with the land in the way that party requires. And in order to protect registered proprietors, a party that wrongly lodges a caveat without reasonable cause, the registered proprietor will be able to bring a claim against that party for compensation and damages sustained.
Thank you for reaching out today.
You have a legal right to protect your interests in this important situation.
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